
    Ziehm, by etc., v. Vale.
    
      Negligence — Automobile owner — Warns away 'intruding child — Duty to exercise reasonable care continues, when — Liability — Attractive nuisance — Statical condition made perilous— • Charge to jury.
    
    1. Where the owner of an automobile, upon returning to his car, finds an infant four and one-half years of age thereon, and twice drives the infant from the car, the owner is not thereby absolved from further duty towards such infant. Under such circumstances, when the child still remains in close proximity to the car, the driver is required to exercise reasonable care to avoid injury to the child. (W. & L. E. Rd. Co. v Harvey, 77 Ohio St., 235, distinguished.)
    2. The principle of non-liability applied in the Harvey case, supra, does not apply where the statical condition of the premises is made perilous by the active and negligent operation thereof by the owner.
    (No. 15789
    Decided June 21, 1918.)
    Error to the Court of Appeals of Cuyahoga county.
    
      At the time of the accident the plaintiff was an infant about four and one-half years of age. The defendant was driving an open, fore-door, seven-passenger automobile. On the morning of June 15, 1913, the defendant had driven his car to his father-in-law’s house on East 64th street in Cleveland. He left his automobile standing at the curb on the right-hand side of the street in front of his father-in-law’s house, which he entered, remaining there about twenty minutes. Returning to his car he found the plaintiff and two or three other small boys upon the right-hand running board of his car near the curb. The children asked to be given a ride. This the defendant refused and drove them away from the car. The defendant proceeded in front of his car, cranked his engine, and, upon getting into the car on the left-hand side, noticed the plaintiff upon the left-hand running board of his car. The car was one with a right-hand drive.
    At this instant point of time, there is considerable conflict in the testimony as to what occurred. The plaintiff gave testimony tending to show that the little fellow remained on the left-hand running board of the car when the defendant started it. In the defendant’s own testimony, while he concedes that the child appeared upon the left-hand running board after he had cranked his engine, he says that he “shooed him away with his cap,” and that the child left the car for a short distance, and that he did not know the child was on the running board when the car started.
    
      Upon this.phase of the defendant’s testimony the requests asked by the defendant below were proffered, and refused by the trial court, and in lieu thereof the court charged generally on the subject of ordinary care, as hereafter shown.
    The special requests asked by the defendant and refused were as follows:
    “First: Unless you find from a preponderance of the evidence that the defendant, at the time he started his automobile or while he was running it forward, knew that the plaintiff was then upon the running board of his automobile, then you should return a verdict for the defendant.
    “Second: If you find that the defendant, before starting his automobile forward, had driven the plaintiff away from his automobile, then I say to you that the defendant was under no other or further duty towards the plaintiff, and under such circumstances he was under no duty or obligation to see that the plaintiff remained away from the automobile; and if he then started his automobile forward, not knowing that plaintiff was upon its step or running board, then he would not be liable to the plaintiff in this case, and your verdict should be for defendant.
    “Third: The defendant can only be liable to the plaintiff in case he actually knew that plaintiff was upon the running board or step of his auto at the time he started or while running the same forward. The defendant cannot be held liable merely for neglecting to investigate and find out that plaintiff was upon said running board or step.”
    
      Under the facts stated the trial court charged the jury as follows:
    “The defendant when he came from the house of his father-in-law if he saw children there in his automobile or upon some portion of it; that is, if he did see them, was under the circumstances surrounding him at the time bound to use ordinary care to determine from the size- and appearance of the children, their age and their discretion, and" to exercise care commensurate with the perils of the situation, if any perils then existed.
    “If you find, however, that the defendant was exercising the degree of care the circumstances required and demanded before he put his automobile in motion, and that after the automobile was in motion the plaintiff jumped upon some portion of it without knowledge on the part of the defendant that the plaintiff was about to do so or had done so, then the defendant would not be liable for any injuries sustained by the plaintiff under such circumstances. If, however, the defendant had reason to believe that children, including the plaintiff, from their conduct and their actions would follow the car or automobile, or come from the side and attempt to climb or jump upon it, or some portion of it, he was bound to use ordinary care in the use of his eyes and senses to avoid injuring them, or any one of them. If he chased these children away and warned them to keep away from his vehicle or car, what did ordinary care require or demand of him at the time he put the automobile in motion? Was he bound to anticipate that the plaintiff would return or that he would not return, or would return and place himself in a position of danger? What would a man of ordinary prudence have done under the circumstances?”
    And further: “I say to you this defendant was bound to know that a child under the age of five years might act upon a childish impulse and if the plaintiff was so close to the car as the defendant got into the car and started it, or 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, you have a right to inquire what ordinary care and prudence required of the defendant under such circumstances.”
    In the trial court the plaintiff recovered a judgment. This judgment was reversed by the court of appeals, for error in refusing the requests noted, and in submitting to the jury the question of ordinary care, as disclosed in the general charge. This reversal was based chiefly upon the authority of W. & L. E. Rd. Co. v. Harvey, 77 Ohio St., 235. Error is now prosecuted to this court.
    
      Messrs. Payer, Winch, Rogers & Minshall, for plaintiff in error.
    
      Messrs. Boyd, Cannon & Brooks, for defendant in error.
   Jones, J.

If there was a violation of legal duty owing by the defendant to the infant child under the circumstances detailed, it would be actionable negligence. In the present case the feature of invitation or license is not involved, for it is conceded that the child was on the car against the express command of the defendant. As disclosed by the first and second special requests, the defendant conceived that he was not liable unless he actually knew that the child was on the running board of the car at the time he started his car or while he was running the same forward. The second request was predicated upon the principle claimed, that after driving the child away from the car there devolved no further duty upon the defendant, and that no obligation rested upon him to see that the child remained away.

The trial court refused to apply the principle of nonliability as requested, but imposed upon the defendant the obligation to use ordinary care, if the circumstances would apprise the defendant, as an ordinarily prudent man, that a child of four and one-half years, acting under childish impulses, would renew his attempt to get upon the running board of the automobile. The court of appeals reversed the judgment on the authority of W. & L. E. Rd. Co. v. Harvey, 77 Ohio St., 235, and in its opinion says: “We think that when the plaintiff left the street for the purposes of travel and got upon the defendant’s automobile without invitation, he was not rightfully there and brought himself fairly within the reason of the rule in the Harvey case and is to be governed by its principles.”

This case is clearly distinguishable from the reported case cited. In that case there was neither knowledge of the presence of the infant nor any active force employed which caused its injury. Under the facts disclosed in the Harvey case, the rule there stated .in the syllabus applies to the condition of the premises, its construction or maintenance, and does not embrace a situation where a statical condition of the premises is made perilous by the active, negligent operation thereof by the owner. If a servant of the company at the time of the injury had failed to exercise ordinary care toward the Harvey child, by operating the turntable under circumstances where an ordinarily prudent person would have known that the life of the child might be imperiled, that case would have assumed an entirely different aspect. This is the situation presented by the nisi prius court in the instant case. It may be conceded that the duty of exercising ordinary care does not inure to the benefit of a bare licensee who commits a trespass, and that a child of plaintiff’s age is incapable of committing a conscious trespass. The Harvey rule is based on the principle that no legal duty devolves upon the landowner to so construct his property as not to injure a child who approaches it without the knowledge or invitation of the occupier. If the driver of this automobile when he approached the car had no knowledge that the child was on the car or in its immediate vicinity, obviously there would be no liability. But when he concedes that he drove the child, first from the right running board, and again from the left running board of his car, would not these and other attending circumstances apprise the defendant that a child of that age, acting under childish instinct, and unaware of its peril, would make still another attempt to board the car? This actually did occur. The trial court was therefore not in error when it charged the jury upon the subject of the defendant using ordinary care under the facts disclosed.

The distinction between the legal duty due uninvited persons, in cases arising from the construction of the premises and in those arising from their negligent operation, is clearly made and discussed in C., H. & D. Rd. Co. v. Aller, 64 Ohio St., 183. On page 193, Shauck, J., in discussing the case of Harriman v. Railway Co., 45 Ohio St., 11, said of that case: “The injury was not occasioned by any real or alleged defect in the construction of the road. The injury there resulted from the operation of the road.”

The petition sufficiently pleaded facts imposing the duty of ordinary care covered by the general charge. It contained an allegation of negligence, charging that the defendant saw and knew that the child was on the running board, or “by the exercise of ordinary care, would have seen that said plaintiff was on the running board of said car.”

For the reasons stated, the judgment of the court of appeals is reversed, and that. of the common pleas affirmed.

Judgment reversed.

Nichols, C. J., Newman, Matthias, Johnson and Donahue, JJ., concur.

Wanamaker, J., concurring. I heartily concur in the judgment in this case.

In the syllabus and the opinion an effort is made to distinguish this ease from the Harvey case, upon which the court of appeals based its judgment.

Whenever a court undertakes to distinguish or differentiate one case from another, a strong presumption arises that the court approves such other case, the judgment, and the course of reasoning through which such judgment was reached.

I desire here and now to register my protest against the judgment of that case. It was an astonisher to the profession and the public at the time it was rendered, in 1907, and indicates the high-water mark of the supreme court of that time in its effort to magnify property right and minimize personal right — the right to life, limb, health and safety — especially when applied to a child four and a half years of age.

The opinion notes more than a hundred cases pro and con, and reviews many of them touching the subject-matter of that case. Concurring in the judgment were Judges Shauck, Crew, Davis and Summers. Judges Spear and Price did not concur.

The supreme court of the United States in Sioux City & Pac. Rd. Co. v. Stout, 17 Wall., 657, decided in 1873, laid down the doctrine that entitled Harvey to a verdict in that case.

The opinion in the Harvey case laments the fact that: “The multitude of circumstances under which the owner of property would be liable for injuries to children, and the very serious burden that was, in consequence, being placed upon the owners of property, were very probably not foreseen in the Stout case.”

Throughout the opinion much consideration is given to the conservation of property, but substantially no regard to the conservation of child life, limb and safety.

Many cases no doubt sustain the Harvey case, but an equal number of cases may be found in the books sustaining witchcraft, slavery, and other inhumanities and infamies, in the light of present-day civilization and jurisprudence.

I desire to especially commend the late lamented Judges Price and Spear for their refusal to concur in the doctrine announced in the Harvey case.  