
    The Baker-Evans Ice Cream Co. v. Tedesco, an Infant.
    
      Negligence—Doctrine of attractive nuisance inapplicable— Child picking up ice from delivery truck parked in street —Not actionable negligence for driver to call “Hey, there”—Frightened child running away struck by passing automobile.
    
    It is not actionable negligence for the driver of an auto truck, standing at the curb of a city street, to call “Hey, there,” as a warning to children congregated about such truck for the purpose of procuring pieces of ice which had dropped therefrom into the street, where in addition to such act of claimed negligence it is averred that as a result of such warning, and similar warnings on previous occasions, the plaintiff a child five years of age and other children with her near the truck were put in fear of the driver and upon his approach would run away from the truck, although upon the occasion in question the plaintiff in crossing the street toward her home was struck by a passing automobile. The doctrine of attractive nuisance has no application under the facts here presented.
    Motor Vehicles, 28 Cyc. p. 37 (Anno.); Negligence, 29 Cyc. p. 448.
    (No. 19071
    Decided February 16, 1926.)
    Error to the Court of Appeals of Mahoning county.
    This cause originated in the court of common pleas of Mahoning county, where issue was made by a general demurrer to the second amended petition. The material averments of that pleading are as follows:
    That at the time of the happening of the things complained of the agent of the defendant, the Baker-Evans Ice Cream Company, was delivering ice cream to customers of the defendant, the defendant being a manufacturer of ice cream in the city of Youngstown; that in making such deliveries a covered automobile truck was employed; that at the time referred to the defendant’s agent had stopped said truck at the curb on the south side of Federal street in that city, facing west, that being against travel, in violation of the laws of the state; that said Federal street is about 40 feet wide, is paved with brick, and is a much-traveled street; and that on the day in question, while the agent of the defendant was so engaged in delivering ice cream and cracked ice from such truck, particles of ice fell from the rear of the truck to the pavement. The plaintiff, who is a child of the age of five years, came from her home directly across Federal street to pick up particles of ice which had fallen from the truck, and “when said agent and servant of defendant’s suddenly reappeared from said cellar of said customer, and when he was in full view of this infant plaintiff, and also while this infant plaintiff was in full view of defendant’s said agent and servant aforesaid, and when each was in the sight and hearing of the other, and also when said infant plaintiff was . so in the act of picking up said small particles' of cracked ice from the pavement in the rear of said defendant’s covered automobile truck, and also when defendant’s automobile truck was so unlawfully and negligently parked, the defendant, by and through its said agent aforesaid, called to this infant plaintiff in a loud, boisterous, and threatening voice, ‘Hey, there!’ ” The agent and servant of the defendant was at the same time walking in the direction of the rear of said covered automobile truck, where infant plaintiff was so engaged in picking up small particles of ice. It is then averred that when the agent called out, “Hey, there,” the plaintiff “immediately, alertly and swiftly” started across the street toward her home, such action being induced by fear of defendant’s agent, from his words and conduct, and by the fear caused by the agent and servant at other' times. It is subsequently averred that the -agent of the defendant would frequently use and employ at and toward children harsh, boisterous, and threatening language, to the effect that they should-go away from said automobile truck, and that, from time to time, said children, including the plaintiff, would thereupon leave said truck; that the language of the defendant’s agent was calculated to and did put the children in fear, “but notwithstanding said harsh, boisterous, and threatening language used by defendant’s agent, said children,- including this infant plaintiff, repeatedly continued during said months to congregate around the rear of said truck,” etc. It,is then averred that as plaintiff undertook to cross the street toward her home, when the defendant’s agent approached the truck and called, “Hey, there,” she was struck by a certain automobile then lawfully driven from the west in that street, which was being driven on the proper side of the street, causing certain injuries which are therein described.
    The negligent acts charged, which it is claimed constitute the direct and proximate cause of the injuries complained of, are stopping the truck on the left-hand side of the street; permitting par-tides of ice to fall on the pavement, the defendant knowing that cracked ice would attract small children, including the plaintiff; leaving the truck unattended; calling “Hey, there,” at the plaintiff as she was in the act of picking up ice, knowing, that she would run across the street toward her home; and failing to warn children, including plaintiff, of the dangers and perils from traffic going east.
    The general demurrer to the second amended petition was sustained in the common pleas court, but upon proceeding in error in the Court of Appeals that court found that the second amended petition contained averment of facts sufficient to constitute a cause of action and reversed the judgment of the court of common pleas. Thereafter, upon motion, the record was ordered certified to. this court.
    
      Messrs. Wilson, Hahn, Henderson é Wilson, for plaintiff in error.
    
      Messrs. Knight & Gluck, for defendant in error.
   Matthias, J.

The only question in this case is whether the facts stated in the amended petition constitute a charge of actionable negligence against-the defendant.

The situation presented by the amended petition of the plaintiff, tersely stated, is that for several months prior to the date of the occurrence of the accident related, the plaintiff and other children in the neighborhood had been accustomed to gather' about the truck of the defendant whenever it was in that vicinity, particularly during the absence of the driver on his mission of making deliveries of ice cream or ice; that, although the driver had frequently warned them away from the truck by harsh, boisterous, and threatening language, they would nevertheless congregate there for the purpose of procuring pieces of ice whenever the truck was in that vicinity; and that they had done so upon the occasion in question.

The gist of the charge made by the amended petition is that because the defendant’s agent had frequently used and employed toward children boisterous and threatening language, in warning them away from his truck, he had put them in such fear of him that they would leave instantly and precipitately upon his approach. According to the averments of the Amended petition, that is just what happened on this occasion. The defendant’s agent did just what he had done on many previous similar occasions under like circumstances, with the same effect. There was, of course, no invitation by him to these children to congregate about his truck. The averments of the pleading are to the contrary. The contention of counsel for plaintiff is that the action of the defendant’s agent in approaching the truck and calling, “Hey, there,” was an act of negligence which caused plaintiff to run across the street, and that her injury by a passing automobile, while so doing, was a proximate result of such act of defendant’s agent. True, there are averments of other acts which are characterized as negligent, but they have not been urged and require but little consideration.

The stopping of the truck on the left side of the street, though in violation of law, is not shown by any averment in the petition to have affected the situation, and the location of the truck had nothing to do with threatening and frightening the plaintiff and causing her to run into or across the street. The plaintiff was not injured by the truck, nor was she injured by being in or about the truck. Taking the statements of the amended petition at their full worth, the plaintiff’s right of recovery must rest upon the proposition that the defendant’s agent was negligent in that by word and demeanor used for the purpose of warning the children away from his truck he caused plaintiff to run into the street toward her home, and that such action of his was the proximate cause of her injury. It is urged that defendant’s agent should have known that his manner and action were calculated to and likely would cause the children gathered about the truck to run into danger and be injured, and that, if, using ordinary care, he would have known that the plaintiff from her childish instincts would run away when frightened by him, he would be liable for the injuries suffered by her.

The case of Ziehm v. Vale, 98 Ohio St., 306, 120 N. E., 702, 1 A. L. R., 1381, is relied upon by counsel for plaintiff to support this contention. In that case it was held the owner of an automobile was not absolved from all duty toward a child of-tender years, whom he found upon his automobile, parked at the curb, by merely driving Mm away therefrom, but that, if the child remained in close proximity to the car, the driver was required to continue to exercise reasonable care to avoid causing injury. The facts disclosed in that case were that when the owner returned to his car parked at the curb he found two or three small boys upon the right running board, who asked for a ride, but were refused and driven away from the car. The plaintiff, however, went around the automobile and climbed upon the left running board, from which he fell shortly after the car was started. The court approved a charge given, which, in effect, declared that the defendant was bound to know that a child under the age of five years might act upon a childish impulse, and that if the plaintiff was so close to the car when the defendant got into it, and put it in motion, and his conduct was such as to lead a prudent man to believe that he was about to jump upon the car, the jury would inquire what ordinary care and prudence required of the defendant under such circumstances.

That is quite a different state of facts from those disclosed by the record in the instant case. There is no complaint here that the driver of the truck was not sufficiently vigorous and forceful in word and act to drive these children away from it. It is just the contrary. In this case the defendant’s agent did just what this court in the Ziehm case held he should do, and now it is urged that he is liable because he did that. The averments of the petition indicate that because of the language and action of the defendant’s agent on previous occasions the plaintiff and other children feared him when they saw him coming, and would run away upon his approach, without a warning by calling to them, or otherwise. From these averments it seems doubtful if the “Hey, there,” on this occasion, added anything to causing the plaintiff to run. away. However that may be, it was clearly the duty of defendant’s agent to warn the children away from the truck before he started. He did that, and thus averted any injury that might have been caused by moving the truck while the children were in the vicinity. It is pertinently asked what further is required under such circumstances, and it is well suggested that if one is liable for failure to warn, and is also liable if he does give an effective warning and thus cause the children to absent themselves from a dangerous place and prevent injury to them, it is quite difficult for such person to determine what can be done to avoid liability. If there be a liability under the state of facts here presented, there would be a liability had the driver been in his seat and by use of his auto horn given warning to the children in the street in an endeavor to avert injuring them, if a child getting out of the street were injured by a passing automobile or otherwise. Surely no one could claim that the giving of such warning under those circumstances would constitute actionable negligence. The doctrine of attractive nuisance can have no application under the facts and circumstances here presented.

For the reasons indicated we are of opinion that the court of common pleas was right in sustaining the demurrer to the amended petition and its judgment should have been affirmed.

Judgment of the Court of Appeals reversed and that of the common pleas affirmed.

Marshall, C. J., Jones, Day, Allen, Kinkade and Robinson, JJ., concur.  