Bobbitt, J.
This action was commenced by the filing of a complaint in one paragraph by the administrator of the estate of Shirley E. Neal, deceased, to recover damages resulting from her death caused by the alleged negligence of appellees.
The complaint was amended and a demurrer thereto was sustained for want of facts sufficient to state a cause of action. Plaintiff (appellant) refused to plead over and judgment was rendered against him, from which he appealed. The sustaining of the demurrer is the sole error assigned.
The relevant parts of the amended complaint are as follows:
“(5) On June 10th, 1946 the defendants were engaged in the construction of a story and a half frame dwelling house located on Ontario Street near the intersection of said street with 178rd Street in the City of Hammond. Said dwelling house was being erected on the east side of Ontario Street and was the second dwelling house located on the east side of Ontario Street, north of 173rd Street. On June 10th, 1946 said dwelling house was in a partial stage of completion in that the foundation has been completed, the side walls erected and the roof placed upon the building. The doors and windows had not yet been installed. No flooring had been placed upon the joists or rafters constructed at or about the so-called street level, nor had any flooring been placed upon the rafters and joists which constituted the supporting structure or the so-called upstairs or second floor of the frame building. On the north side of the building and approximately at street level there was an opening in the structure approximately 36" wide and 90" in height, which opening was apparently constructed for the purpose of installing a door or entry way to the structure. On June 10th, 1946 [165]*165no barricades or other obstructions were placed in the opening for the purpose of prohibiting the entry into the structure by children or other persons in the immediate locality. On the inside of the structure and within a few feet of the opening herein mentioned the defendants or either of them acting through their agents and or employees had caused to be placed a wooden stepladder, the lower portions of which rested on the joists or rafters at ground level and the upper extremeties rested upon or reached the joists or rafters which were erected or constructed for the flooring of the so-called second floor.
“(6) The conditions above described which existed on June 10th, 1946 had existed for several days prior thereto. On June 10th and for several days prior thereto, various children in the neighborhood, including the children of the decedent mentioned above, were accustomed to playing in and about the dwelling house and surrounding neighborhood. These children had been accustomed to making entry into the building through the opening described and had been playing in and about the stepladder and joists herein mentioned. By virtue of the fact that the frame building was in the early stages of completion, and by virtue of the further fact that no steps had been taken to prevent small and immature children from gaining entrace into the structure, the dewelling house had become on June 10th and for several days prior thereto a peculiarly attractive location for immature children in the neighborhood to sport and play. This condition was and had been fully known to the defendants and each of them in that it was apparent to the carpenters and other tradesmen working as employees of the defendants in and about the premises. Plaintiff believes and states the fact to be that the conditions described herein were personally known by the defendant Francis L. Wilson who was in the habit of making daily inspection of the dwelling house under construction, in connection with his supervisory duties.
“(7) On or about Monday, June 10th at approximately 9- o’clock in the morning the three children of the defendant entered the dwelling [166]*166house through the opening on the north side of the structure for the purpose of sport and play as was their habit. Anthony and Clarence climbed the stepladder to the upper joists and rafters. John, the youngest, became caught, pinioned upon the stepladder as he attempted to follow his older brothers up the stepladder to the so-called second story. Being unable to extricate himself and becoming frightened he uttered several screams. The screams of the child were heard by the decedent while she was engaged in her household duties in her home directly across the street from the dwelling house being constructed. Recognizing the voice of her youngest son and realizing that the child was in peril, the decedent left her home, ran across the street and entered the structure. In attempting to extricate the child from his position of peril on the stepladder and being under emotional stress because of the peril of the child, the plaintiff’s decedent lost her footing upon the joists and fell astraddle one of them causing severe bodily injury to plaintiff’s decedent from which she died on June 27th, 1946. At the time of her injury plaintiff’s decedent was seven months pregnant with child.
“ (8) The sole and proximate cause of the death of plaintiff’s decedent was the negligence of the defendants and or each of them acting through their agents and employees, in the following particulars :
_ “(a) In failing to use reasonable care in barricading the entrance of the semi-completed dwelling house as herein described, when they knew, or in the exercise of reasonable care should have known, that children of immature years and more particularly the children of plaintiff’s decedent were atiacted to the semi-completed dwelling house for the purpose of play and sport, and were at the time and place of injury to plaintiff’s decedent accustomed to using the semi-completed dwelling house as a place of sport and play.
“(9) Prior to her injury and death, as hereinabove mentioned, the plaintiff’s decedent was a well and healthy woman twenty-nine years of age.. Plaintiff and the children of plaintiff and the de[167]*167cedent were dependent upon the decedent for the performance of all the household duties required in maintaining the family and in nursing and raising the children. As a result of said negligence plaintiff and the remaining heirs at law of said Shirley E. Neal suffered great damage in that they were deprived of the care, services and attention of said Shirley E. Neal. Plaintiff also suffered further damage in that he was required to expend moneys for the expenses of the last illness of the decedent and for her burial. The damage so suffered was and is greatly in excess of Ten Thousand ($10,000.00) Dollars.”
If appellant is to recover under the allegations of his complaint, it must be done under the “rescue doctrine.” This rule is clearly stated in 65 C. J. S., Negligence, §63, p. 554:
“One who has, through his negligence, endangered. the safety of another may be held liable for’ injuries sustained by a third person in attempting to save such other from injury.”
It has been applied in the jurisdictions which have adopted it only where the situation which invites rescue is created by the tortious act of the defendant or by one for whom he is responsible. 65 C. J. S., Negligence, §124, p. 738.
The sole act of negligence here charged is: The failure of appellees under the circumstances as set out in the amended complaint to “barricade the entrance to the semi-completed dwelling house” described in said complaint.
[168]*168[167]*167Actionable negligence consists of (1) the existence of a duty on the part of the defendant to protect the [168]*168plaintiff from injury; (2) a failure by the defendant to perform that duty; and (3) an injury to the plaintiff from such failure of the defendant. Harris v. Indiana General Service Co. (1934), 206 Ind. 351, 356, 189 N. E. 410; Pontiac-Chicago M. E. Co. v. Cassons & Son (1941), 109 Ind. App. 248, 254, 34 N. E. 2d 171.
The absence of any one of these elements renders a complaint bad for insufficient facts. Elder, Receiver v. Rutledge, Admx. (1940), 217 Ind. 459, 464, 27 N. E. 2d 358; Pontiac-Chicago M. E. Co. v. Cassons & Son, supra.
The second and third elements of actionable negligence are not in dispute, hence the sole question is: Did the appellees owe a legal duty to the children of the deceased, Shirley E. Neal, to put something across the doorway opening in the semi-completed building to keep them out — off the premises?
Appellant contends that greater care is required in dealing with children of tender years than with older persons who have reached the age of discretion and relies upon Penso, by next Friend v. McCormick et al. (1890), 125 Ind. 116, 25 N. E. 156, 9 L. R. A. 313, 21 Am. St. Rep. 211, and Drew v. Lett (1932), 95 Ind. App. 89, 182 N. E. 547, for support.
In this state the only degree of care required is always the care which an ordinarily prudent person would exercise under the same or similar circumstances. Jones v. Cary (1941), 219 Ind. 268, 279, 37 N. E. 2d 944; Fields v. Hahn (1945), 115 Ind. App. 365, 375, 57 N. E. 2d 955.
The rule which this court recognizes as the law in Indiana is ably stated in Thompson v. Ashba (1951), 122 Ind. App. 58, 61, 102 N. E. 2d 519, 521, as follows:
“There are no degrees of negligence in the State [169]*169of Indiana, neither are there degrees of care. The law upon this subject has been stated as follows:
“ Tf thére can be no degrees of negligence, it must follow that there can be no degrees of duty. Duty is an absolute term. The law requires nothing more than duty; it will excuse nothing less.
“ ‘The use of such terms as “slight care,” “great care,” “highest degree of care,” or other like expressions . . . indicating the quantum of care the law exacts under special conditions and circumstances, is misleading; and when so used they constitute an invasion of the province of the jury, whose function it is to determine what amount of care is required to measure up to the duty imposed by law under the facts of the particular case. The law imposes but one duty in such cases, and that is'the duty to use due care’. Union Traction Co. v. Berry, 1919, 188 Ind. 514, 121 N. E. 655, [657], 124 N. E. 737, [32 A. L. R. 1171].
“The care required varies with each case, with each set of facts; .... Jones et al. v. Cary, 1941, 219 Ind. 268, 37 N. E. 2d 944; Union Traction Co. of Indiana v. Berry, supra; Elder v. Rutledge, 1940, "217 Ind. 459, 27 N. E. 2d 358.”
See also: Heiny, Admx. v. Pennsylvania R. Co. (1943), 221 Ind. 367, 373, 47 N. E. 2d 145; Jones v. Cary (1941), 219 Ind. 268, 279, 280, 37 N. E. 2d 944, supra; Lake Erie, etc. R. Co. v. Ford (1906), 167 Ind. 205, 212, 78 N. E. 969; Indiana Service Corp. v. Schaefer (1936), 101 Ind. App. 294, 298, 199 N. E. 158.
The duty to exercise care for the safety of another brises as a matter of law out of some relation existing between the • parties, and it is the province of the court to determine whether such a relation gives rise to such duty. Union Traction Co. v. Berry, Admr. (1919), 188 Ind. 514, 520, 121 N. E. 655, 124 N. E. 737, 32 A. L. R. 1171.
First: In determining whether appellees were guilty of actionable negligence, we shall first consider whether [170]*170the facts here alleged bring the case within the common law rule.
The general common law rule applicable here is stated in 65 C. J. S., Negligence, §27, pp. 450, 451, and supported by the authorities there cited, as follows:
“The general rule is that no different or higher duty exists with respect to an infant trespasser than would exist in the case of an adult trespasser, so that ordinarily there is no duty toward an infant trespasser except to refrain from willful or wanton injury. Accordingly, it has been held that ordinarily there is no duty to anticipate the presence of infant trespassers, to_ keep a lookout for them, to guard against their intrusion, or to keep property in such safe, proper, or particular condition as not to endanger them if they trespass thereon. Infant trespassers ordinarily take the premises as they find them.”
The children here involved are either trespassers or licensees by sufferance or permission and the above rule applies with equal force to all. It seems clear to us that the complaint herein does not state facts sufficient to constitute a legal duty within the general common law rule above stated.
Second: Next we shall consider whether the facts herein alleged bring appellant’s case within the clearly defined limits of the attractive nuisance doctrine which is an exception to the common law rule.
The rule under which the doctrine of attractive nuisance operates is stated in 38 Am. Jur., §151, p. 818, as follows:
“. . . The doctrine of attractive nuisance, it has been said, is limited in its application to cases where the danger is latent, and affords no basis for a recovery where the injury complained of was produced by a peril of an obvious or patent character. A danger which is not only obvious but natu[171]*171ral, considering the instrumentality from which it arises, is not within the meaning of the attractive nuisance doctrine, for the reason that an owner or occupant is entitled to assume that the parents or guardians of a child will have warned him to avoid such a peril. Pits and excavations on land embody no dangers that are not readily apparent to everyone, even very young children. For this reason, the proprietor is under no obligation, as a rule, to fence or otherwise guard such places, and he will not be liable for injuries to children who may have fallen therein. . . .”
And, further, in 65 C. J. S., Negligence, §29 (3), p. 461, as follows:
“It has been considered that the attractive nuisance doctrine applies only where the danger is latent, and not when it is patent, for the reason that the inefficiency of children who are so little advanced as to be unable to recognize patent dangers should not be allowed to shift the care of them from their parents to strangers or to impose on the owners of property a duty and liability where otherwise none would exist.”
Appellant concedes that the facts in this case do not bring it within the “attractive nuisance” doctrine and in this we concur.
While the semi-completed dwelling house might have been attractive to children of the deceased herein as a place to play, there is no allegation that a latent or unsuspected danger, which was negligently created or maintained by the appellees, or either of them, was present in the building. In the absence of such an allegation the complaint would not be sufficient if the attractive nuisance doctrine were the sole reliance for recovery.
[172]*172[171]*171A building under construction ordinarily does not come within the attractive nuisance rule. Puchta v. [172]*172Rothman (1950), 99 Cal. App. 2d 285, 221 P. 2d 744; State v. Bealmear (1925), 149 Md. 10, 130 A. 66; Witte v. Stifel (1895), 126 Mo. 295, 28 S. W. 891, 47 Am. St. Rep. 668; 65 C. J. S., Negligence, §29, (12i), p. 475.
Third: Having concluded that the facts herein do not bring appellant’s case within the attractive nuisance rule, it then follows that if appellant’s complaint is sufficient it must rest upon some variation of the attractive nuisance rule or upon some other exception to the common law rule.
The attractive nuisance rule has been extended in some jurisdictions under certain limited conditions where children of tender years are known trespassers. The rule which is generally applied under such circumstances as stated in 65 C. J. S., Negligence, §28, p. 453, 454, involves four particular conditions: (1) Where there is “knowledge of the presence of an infant trespasser in a position of peril;” (2) “where one who is in charge of dangerous machinery sees a child of tender years intruding into a place where it may be endangered by such machinery;” (3) where “one who maintains something dangerous to children and so exposed that there is a likelihood of their coming in contact with, and being injured by . . . it . . . notwithstanding they may be trespassers and (4) “when the owner knows or should know that children are likely to trespass on a part of his land on which he maintains a condition which is likely to be dangerous, to them . . .”
The first part of the rule noted above applies only to situations where children are already on the' premises, and with the knowledge that they were in a position of peril the owner failed to.take the •v - necessary precaution to avoid injury to them. The duty here charged is the failure to barricade the [173]*173entrance — to keep the children out of the semi-constructed house — not to avoid injury to them after they had entered. Hence, appellant does not bring his case within this section of the above rule.
There is no allegation in the complaint that appellees were in charge of dangerous machinery of any kind, hence the second section of the rule has no application here.
The complaint contains no allegation that appellees maintained something dangerous to the child with which it came in contact and was injured thereby. Hence, appellant's case cannot rest upon the third section of the rule.
It is alleged in the complaint that appellees knew that children were accustomed to play in the semi-constructed house in question. The only requirement necessary then to bring the case at bar within §4 of the rule is, that the complaint allege facts sufficient to show that appellees or one of them maintained a condition within the semi-completed house that would likely be dangerous to children. In all of the cases cited as the basis for this section of the rule there was present some artificial or unnatural condition which was inherently dangerous and involved an unreasonable risk to children; and where the court held there was a liability it arose only out of the negligent act of the landowner in maintaining such condition in a dangerous manner.
See: Angelier v. Red Star Yeast & Products Co. (1934), 215 Wis. 47, 254 N. W. 351; McPheters v. Loomis (1939), 125 Conn. 526, 7 A. 2d 437; Wolfe v. Rehbein (1937), 123 Conn. 110, 193 A. 608.
The only condition which the complaint alleges as being maintained upon the premises here under consideration and which for the purposes of the demurrer [174]*174must be considered as the “artificial or unnatural condition” if any, which constituted an “unreasonable risk” to appellant’s children was a wooden stepladder “on the inside of the building and within a few feet of the opening” described in the complaint, and which extended from the joists on the ground floor to the second floor, or “upstairs.”
It cannot be said that a stepladder, extending from the first to the second floor of a dwelling house under construction, for the use of the carpenters in the course of their work is an “artificial condition” which is “inherently dangerous” to children. That it is a natural and usual practice to use ladders of one type or another, as a means for carpenters and other workers to go from one floor to another in the performance of their duties in connection with the building of a dwelling house, is common knowledge. While there is always some danger involved when a small child climbs a ladder or a fence, a tree, or an open stairway, yet it cannot be said that either is inherently dangerous or that either is a “dangerous instrumentality,” per se.
“Inherently dangerous” means that danger is contained in and is an inherent part of the constitution of the instrumentality or condition itself, at all times, in such a manner as to require special precautions to prevent injury, not simply danger arising from mere casual or collateral negligence of others. Brown v. City of Craig (1943), 350 Mo. 836, 168 S. W. 2d 1080, 1082; Emery v. Thompson (1941), 347 Mo. 494, 148 S. W. 2d 479, 480; Fackrell v. City of San Diego (1945), 26 Cal. 2d 196, 157 P. 2d 625, 629, 158 A. L. R. 773; Vale v. Bonnett (1951), 89 U. S. App. D. C. 116, 191 F. 2d 334, 339.
We do not naturally expect that danger will result [175]*175from climbing a stepladder or from entering a dwelling house under construction unless it is produced by some negligent act independent of the ladder or construction itself; and where danger is not naturally expected to result in the use of something it is not an “inherently dangerous instrumentality.” Jennings v. Vincent’s Admx. (1940), 284 Ky. 614, 145 S. W. 2d 537, 541.
It has been held that “wooden horses” and mortar boards are simple appliances in common use by carpenters and others, and are not inherently dangerous instrumentalities within the attractive nuisance doctrine. Ray v. Hutchison (1933), 17 Tenn. App. 477, 68 S. W. 2d 948, 954.
A stationary barn ladder which came apart causing injury to an employee was held not to be a “dangerous instrumentality” in McVey v. Gerrald (1937), 172 Md. 595, 192 A. 789, 793.
We do not believe that either a stepladder or a dwelling house under construction is such a “condition” as is likely to be dangerous to children within the meaning of §4 of the rule.
Fourth: We next consider whether there is any other exception to the common law rule which would apply to the facts alleged in the complaint herein.
Appellant apparently attempts to employ such an exception and in support of his position relies upon a statement in Indiana Harbor Belt R. Co. v. Jones (1942), 220 Ind. 139, 145, 41 N. E. 2d 361, as follows:
“And if the probable presence of the children raises a duty to them of ordinary care, this may be violated before the children arrive upon the premises, by leaving things undone which ought to have been done in anticipation of their coming. This may be ‘passive’ but nevertheless it is negligence.” (Our italics.)
[176]*176That was a case in which a hoy eight years of age was killed by the falling of a heavy door while playing in an empty freight car standing on a switch track. The thing which it was alleged as left undone in that case and to which the court referred in the statement above quoted, was the independent negligent act of the trainman in failing to hook the door. The complaint there charged four acts of negligence, (1) failure to fence the tracks, (2) to put up warning signs, (3) failure to maintain a watchman, and (4) failure to lock the door so that it would not fall. This court, at p. 143, of 220 Ind., disposed of the first three allegations as follows:
“A railroad company owes no duty to children living in the vicinity of its switch yards to erect fences or other barriers to prevent their trespassing. [Citing authorities] Nor is it obligated to have a watchman to keep children off its right of way and cars. [Citing authorities] Signs are not required.”
The complaint there was sustained upon the sole allegation that decedent and other children were playing on the floor of a gondola type railroad car “when without warning the heavy door at the end of the car fell and killed decedent.” The charge of negligence was the failure to lock the door so it would not fall.
Further, in Indiana Harbor Belt R. Co. v. Jones (1942), 220 Ind. 139, 41 N. E. 2d 361, supra, at page 145, this court said:
“If he [the one who owns or controls the property upon or by which the injury occurs] is bound to know of the presence of children he must also know from common experience that they are frequently heedless of danger, and he ought not start in motion something that is likely to cause their injury.”
[177]*177However, the complaint in the case at bar contains no allegation that appellees started anything in motion, or permitted any act, or failed to do something that they should have done after the said children were on the premises, which resulted in an injury to the child or which put it in a position of peril.
The failure to keep said children out of the house— off the premises — is not something “which ought to have been done in anticipation” of the coming of the children within the meaning of those words as used and applied in the Indiana Harbor Railroad case, supra. As above stated, in that case the thing left “undone” was the alleged failure to hook the door to the car so that it would not fall on the children after they were in the car, either as trespassers or licensees by permission or sufferance.
The complaint in the case at bar does not charge any independent act of negligence of appellees either active or passive, such as the failure to lock the door in the Indiana Harbor Railroad case, supra, which might have caused injury to the children of appellant. As above stated, the only act of negligence charged by appellant is the failure to barricade the entrance — to keep the children out of the house.. This is not sufficient to bring the case at bar within the factual circumstances in the Indiana Harbor Belt Railroad case, and it does not lend support to appellant’s position.
Cleveland, etc., R. Co. v. Means (1915), 59 Ind. App. 383, 104 N. E. 785, 108 N. E. 375, relied upon by appellant is also a case where a child was injured after he was on the premises by an independent negligent act of appellant’s agents. In that case it. was held that the duty to protect children arose after they were on the premises as licensees by permission and at page 402, of 59 Ind. App., the court said:
[178]*178“. . . such company owes no duty to either [adult or infant] to keep a lookout for his presence, but it owes to each the duty of ordinary care after there is knowledge of such presence, actual or constructive, . . . .[Citing authorities].”
In Cleveland, etc. R. Co. v. Means, supra, as in Indiana Harbor Belt R. Co. v. Jones, supra, there was an independent act of negligence which caused the injury to the permissive licensee after he had entered upon the premises. In view of the court’s statement that appellant owed “no duty to either [adult or infant] to keep a lookout for his presence,” it is difficult to see how this case in any way supports appellant’s contention that appellees in the case at bar owed a legal duty to barricade the entrance to the dwelling house described in his complaint.
Appellant also relies upon Penso, by Next Friend v. McCormick et al. (1890), 125 Ind. 116, 25 N. E. 156, 9 L. R. A. 313, 21 Am. St. Rep. 211, supra, to sustain his contention that appellees owed a duty to the children of appellant to barricade the entrance to the dwelling house to keep them from entering. The facts in that case, as alleged in the complaint, are that appellees had for many years operated a saw mill in the town of Rockfield, Indiana; that the mill was situated in the most public part of town, and that the grounds surrounding the mill were not and never had been enclosed, and were used by the citizens of the town as a passage-way from one street to another, and as a playground for the children of the town; that for months immediately prior to the time of the injury to appellant there was a mound of ashes from four to five feet high which had been deposited from time to time by appellee on the mill grounds; that the heat from the ashes had escaped and the mound constituted a favorite place where children were accustomed to [179]*179gather and play; that on the day of the injury, without giving any notice either to the appellant or to the public generally, the appellees excavated and removed about twenty bushels of ashes from one side of the mound and filled the cavity so made with hot burning ashes from the fire-box of the mill engine; that no barriers were erected and no warning given that the mound of ashes at that point was dangerous; and that the surface of the hot ashes soon cooled to the point where they presented the same appearance as the remainder of the mound while underneath the surface was a smoldering, burning heap, and while in this condition appellant crossing the mill-yard crossed over the mound of ashes, as he was accustomed to do, and without any fault on his part stepped into the mass of burning cinders and suffered severe injuries. In this case it will be noted that the facts alleged show an inherently dangerous condition (the hot ashes) which was unknown to appellant and which resulted from an independent negligent act of the appellees. No such a situation is alleged in the complaint in the case at bar. The Pensó case lends no support to appellant’s contention and is not authority for sustaining his complaint as against a demurrer for want of facts.
Finally, appellant asserts that since the failure to give notice or warning of danger and to barricade the entrance to an abandoned coal mine was, under the circumstances, in Drew v. Lett (1932), 95 Ind. App. 89, 182 N. E. 547, supra, held to be actionable negligence, it then follows that the failure to barricade the entrance to the dwelling house in the case at bar must be so held. The complaint in the Drew case was held to state a cause of action “upon a theory which seeks' to invoke the doctrine of an ‘attractive nuisance’ as applied to children non sui juris.” Appellant admits [180]*180that the attractive, nuisance doctrine does not apply in the case at bar and we have concurred in that conclusion. Nevertheless, he asserts a principle which was applied in the Drew case and which is stated at p. 97, 95 Ind. App., as follows:
“ Tt is the apparent probability of danger rather than the rights of property that determines the duty and measure of care required of the author of such a contrivance, for ordinarily the duty of avoiding known danger to others may under some circumstances operate to require care for persons who may be at the place of danger without right.’ ”,
but makes no application of this principle to the facts stated in his complaint, and we are unable to see how it can be so applied. The authorities relied upon by appellant do not support his contentions, and the rule which he seeks to invoke does not apply to the facts stated in his complaint.
It is tíre law in Indiana that persons who maintain a dangerous agency or instrument on their premises owe a duty to infants and adults alike to use reasonable care to protect or guard the dangerous agency or instrument, or to give timely warning of such condition after having knowledge of the same. And where the person could have reasonably anticipated that children or other persons might come into contact with the dangerous agency or instrument, and such a contact is reasonably sure to inflict serious injury, he should take whatever steps are reasonably necessary to prevent injury to those who are likely to come into contact therewith. Harris v. Indiana General Service Co. (1934), 206 Ind. 351, 189 N. E. 410, supra.
A semi-constructed dwelling house is, in our opinion, not a dangerous agency or instrument within the meaning of the rule above stated.
[181]*181While under the circumstances in the Harris case, supra, there may have existed the duty to guard the high voltage tower in question, but, if so, it arose by reason of the inherently dangerous condition of the tower due to a specific independent act of negligence of the company (defendant). This is not the circumstance presented in the case at bar, and it does not follow that if under the circumstances in the Harris case the company owed a duty to trespassers or licensees by sufferance or by permission to guard the tower, that appellees owed a duty to the children of appellant to barricade the entrance to the semi-constructed dwelling house to keep them and other children in the vicinity who might come there to play from entering on the premises. The duty here, if any, arose after the children of said deceased had become licensees by sufferance. Appellees owed no legal duty to keep appellant’s children off their premises (out of the semi-constructed dwelling). The authorities in Indiana and other jurisdictions support this conclusion.
In Indiana Harbor Belt R. Co. v. Jones (1942), 220 Ind. 139, 41 N. E. 2d 361, supra, this court held that a railroad company owes no duty to children living in the vicinity of its switch yards to erect a fence or other barricades to keep them off the tracks (to prevent their trespassing), or to maintain a watchman or erect signs to keep them off the premises.
In Cleveland, etc. R. Co. v. Means (1915), 59 Ind. App. 383, 402, 104 N. E. 785, 108 N. E. 375, supra, the Indiana Appellate Court, in considering the duty of a railroad company to a trespasser, held that there was no duty to either an infant or adult trespasser to keep a lookout for his presence.
The Appellate Court in this state again held in Holstine v. Director, etc. Railroads (1922), 77 Ind. App. [182]*182582, 599, 184 N. E. 308, that a railroad company owes no duty to adult or infant trespassers “to keep a lookout for his [their] presence, but it owes each of them the duty of ordinary care after it has actual or constructive knowledge of such presence, . . .
In Smith v. Hines (1925), 212 Ky. 30, 278 S. W. 142, 45 A. L. R. 980, it was held that a railroad company owed no duty to children to take precaution to safeguard them or warn them of the danger in climbing the handholds thereon to the top of a freight car standing in its yard when the company knew of the custom of children to play on the car. At page 143, 278 S. W., it is said:
“In the case now before us there was no dangerous mechanism or instrumentalities about the car. The handholds and ladder complained of were not dangerous. . . . The child was not caused to fall from the car by the movement of any of its parts which, to his indiscreet judgment, seemed to be safe; he fell by his own inadvertence and misfortune.”
Kayser v. Lindell (1898), 73 Minn. 123, 75 N. W. 1038, was an action for damages because of injuries suffered by a three and one-half year old boy who fell from an unprotected wall on defendant’s premises while playing thereon. The court there held that the property owner, was not liable and, at page 1039, 75 N. W., said:
“It is true that, if the owner of premises keeps upon them a concealed trap, and a person coming upon the premises by invitation is injured thereby, he may recover. But there was no mantrap in this case. The wall was plain to be seen. The child knew it was there, and fell off of it in the daytime. While the owner of premises may owe more duty to a child than to an adult coming upon - his premises by implied invitation, yet he is not bound to guard every stairway, cellarway, retaining wall, shed, [183]*183tree, and open window on his premises, so that such a'child cannot climb to a precipitous place and fall off.”
In McHugh v. Reading Co. (1943), 346 Pa. 266, 30 A. 2d 122, 145 A. L. R. 319, it was held that there was no duty to fence or otherwise safeguard steps whereby children were accustomed to gain access to an abutment wall, and at page 123, 30 A. 2d, it is said:
“Liability to trespassing children has uniformly been limited to accidents arising from latent dangers, such as unguarded machinery, live wires, pits or open trap doors. This distinction results from one of the conditions of liability set forth in the Restatement of Torts, §339, clause (c), that ‘the children because of their youth do not . . . realize the risk involved . . . .’ In the comment (p. 925) on this clause the Restatement says: ‘A possessor of land is . . . under a duty to keep so much of his land as he knows to be subject to the trespasses of young children free from artificial conditions which involve an unreasonable risk of death or serious bodily harm to them. This does not require him to keep his land free from conditions which even young children are likely to observe and the full extent of the risk involved in which they are likely to realize. The purpose of the duty is to protect children from dangers which they are unlikely tc appreciate and not to protect them against harm resulting from their own immature recklessness in the case of known danger.’ ”
In Coon v. Kentucky & I. T. R. Co. (1915), 163 Ky. 223, 173 S. W. 325, L. R. A. 1915D 160, the sole act of negligence alleged was the failure of defendant to guard and protect a retaining wall to prevent children from climbing upon it when the defendant knew that the children were accustomed to play on top of the wall. A demurrer was sustained and recovery denied.
In Sanders v. Baird (1938), 195 Ark. 535, 112 S. W. 2d 966, it was held that no duty rested upon defendant [184]*184to build a fence or other inclosure around a signboard to prevent children who were accustomed to playing in the vicinity from climbing upon the sign.
It was held in O’Callaghan v. Commonwealth Engineering Corporation (1928), 247 N. Y. 127, 159 N. E. 884, 60 A. L. R. 1424, that there was no duty resting upon a building contractor either to prevent children from using steps leading to the roof of a shed which was erected over a sidewalk adjacent to a building under construction or to protect them from falling off the steps by constructing proper railings. At page 885 of 159 N. E. the court said:
“Steps without railings, even ladders, are not inherently dangerous objects which make the streets unsafe even for children. Children do often climb in their play upon fences, ladders, or any other object that may be at hand. They dó at times fall and break limbs. The play of boys is not without its hazards. For some boys it would otherwise be without zest. Even if there be some duty on one lawfully using the city streets for the construction of a building not to create a condition which is inherently dangerous for children who might play there, he is not under any affirmative duty to make the place entirely safe for children or to protect them against the ordinary hazards of boyhood. Accidents do happen, and it may hardly be said that the defendant was under a duty to protect the children from possibility of a fall from a flight of steps which presented no dangers greater than boys encounter in their usual play. As well might it be said that an owner who plants a tree on the side of a highway should support the limbs lest they break under the weight of a boy who may climb into it, or that an owner may not place a wall in front of an area lest children walking in play on the top should fall.
“Indeed, in this case, if the defendant had placed a rail on the side of the steps it may be doubted whether the game of sliding down the rail would [185]*185not have been quite as attractive and quite as dangerous as the game of climbing the steps.”
The building of dwelling houses is an essential element in the life and progress of society in general. The Appellate Court of Indiana said, in Holstine v. Director, etc., Railroads (1922), 77 Ind. App. 582, 134 N. E. 303, supra, at page 593, “ ‘The business of life must go forward,’ ” and, further,
“Restrictions upon the use of property diminishes pro tanto the beneficial character of the use, and hence the law imposes restrictions as seldom as possible, and never except upon the strongest grounds. The law which is reluctant to impose restraint upon an owner’s use of his land even when causing damage beyond his boundary, is more unwilling to impose restraint upon a user which is dangerous only to those who intrude upon his land.”
And, at page 595:
“If a railroad company in a case like the present be held under a duty, such duty is not likely to be set lower than a duty to use such an amount of care, to use such precautions as will render it improbable that harm will result to children found upon its right of way. Such a rule would in many cases require precautions which could only be carried out safely at an expense or in a manner practically prohibitive of beneficial user. As said by Lord Justice MacDonald in Ross v. Keith (1888), 16 Scotch Session Cas. 4th Series 86: ‘To hold that every piece of ground which contains some place or something that might be dangerous to children must be so fenced that children can enter only by what is practically a mode of siege would be to lay an intolerable burden on proprietors.’ Any less efficacious method would probably not be regarded as affording reasonable probability that no child catastrophe would occur. Such a rule in the majority of cases would probably mean that the owner of the land must make his ground practically im[186]*186pregnable to children, that is, child proof. This in many instances would compel the cessation of profitable user. Where the existence of a duty is once admitted, the danger that the jury will be too swift to favor the breach of it does not afford a sufficient reason for abrogating the duty. But when the question is whether a duty shall be held to exist, whether in a particular case the law ought to impose a duty, when the case is on the border line, and when strong reason can be given against establishing the duty, then the probability that the rule contended for would often be misapplied may well be given great and even decisive weight in influencing courts against the establishment of the alleged duty.”
It is also said in Cleveland, etc. R. Co. v. Means (1915), 59 Ind. App. 383, 104 N. E. 785, 108 N. E. 375, supra, at page 407:
“Its obligation is simply that which should attach and under the law ‘attaches to every member of society when he undertakes to exercise a personal right in a manner which may affect the welfare or safety of another member, the obligation of reasonable care . , . (and this) may, at times, seem to be a burden, but its enforced observance is never a wrong, whether applied to railroad companies or to individuals.’ Edgington v. Burlington, etc., R. Co. [(1902), 116 Iowa 410, 90 N.W. 95, 57 L.R.A. 561, and annotations] supra 422, 446. Reasonable care in such cases does not impose any duty where the presence of a child on its tracks is merely possible or where such duty or care imposes on the company an unreasonable limitation on the usual and ordinary use of its property. A correct and pertinent statement affecting this phase of the question will be found in the case of Chicago, etc. R. Co. v. Krayenbuhl (1902), 65 Neb. 889, 902, 904, 91 N. W. 880, 881, 883, 59 L. R. A. 920, where it is said: ‘It is true, as said in Loomis v. Terry [1837], 17 Wend. [N. Y.] *496, *500, 31 Am. Dec. 306, “the business of life must go forward”; the means by which it is carried forward cannot be [187]*187rendered absolutely safe. Ordinarily, it can be best carried forward by the unrestricted use of private property by the owner; therefore the law favors such use to the fullest extent consistent with the main purpose for which, from a social standpoint, such business is carried forward, namely, the public good. Hence, in order to determine the extent to which such use may be enjoyed, its bearing on such main purpose must be taken into account, and a balance struck between its advantages and disadvantages. If, on the whole, such use defeats rather than promotes the main purpose, it should not be permitted; on the other hand, if the restrictions proposed would so operate, they should not be imposed. . . . Hence, in all cases of this kind, in the determination of the question of negligence, regard must be had to the character and location of the premises, the purpose for which they are used, the probability of injury therefrom, the precautions necessary to prevent such injury, and the relations such precautions bear to the beneficial use of the premises.’ ”
Puchta v. Rothman (1950), 99 Cal. App. 2d 285, 221 P. 2d 744, 748, supra, was a case in which the allegations of negligence were that defendants “wilfully removed a stair-way barricade, theretofore erected by said defendants as a safety measure, and wilfully failed to guard, enclose, or block said stairway and roof.” (Our italics.) There, as in the case at bar, appellee was engaged in the construction of a building which, at the time of the alleged injury, was partially completed. The second floor of the building was entirely covered with tar paper and under the paper and totally concealed by it was a hole for a ventilator or skylight. The stairway had been completed to the second floor and appellee knew that children played in the partially constructed building and, in order to protect them from a specific known danger on the second floor, [188]*188had barricaded the stairway. The barricade was removed and while the stairway was unprotected appellant, a ten-year-old child, went to the second floor of the building to play and stepped upon the tar paper' over the concealed opening, fell through to the first floor and was seriously injured. A demurrer was sustained on the ground that the allegations of the complaint were not sufficient to state a cause of action within the attractive nuisance rule. While we do not here either approve or disapprove the ruling on the demurrer, yet some of the reasoning in the opinion applies with equal force to the facts in the case at bar. At page 747, of 221 P. 2d, the court said:
“It is self-evident that any barricade at the foot of the stairway of this building, of sufficient size and strength to keep children from going up the stairs, would destroy the very purpose for which the stairs were built and retard the completion of the building.”
We believe it equally true in the case at bar that any barricade at the entrance to the semi-completed house, of sufficient size and strength to keep children out of the building, would destroy the very purpose for which the opening is maintained during the construction of the building. It is common knowledge that carpenters and other workmen use such openings as a means of ingress and egress into and out of the building in the performance of their duties in connection with the construction thereof, and to require them to remove and replace the barricade every time they went in or out of the building would delay its completion and place an undue burden on the owner of the property. Chicago, etc. R. Co. v. Fox (1906), 38 Ind. App. 268, 275, 70 N. E. 81.
[189]*189The owner or builder of a dwelling house is not an insurer of the safety of children who come upon or into the building while under construction either as trespassers or licensees, by permission or sufferance, for the purpose of play.
“The simple fact that a child non sui juris is Injured will not import negligence to a defendant. It may be argued that a child of tender years is incapable of protecting itself and hence the law imposes the duty upon landowners. The primary duty of protecting children by nature and by law devolves upon their parents who have legal power to control their actions and whose mora.1 duty it is to keep their children from entering upon dangerous premises — an obligation equal at least to the moral obligation of the landowner2 to fence them out.” Holstine v. Director, etc. Railroads (1922), 77 Ind. App. 582, 594, 134 N. E. 303, supra.
It cannot be said that either the child or the deceased, in this case, could have been injured simply by coming in contact with said building. Nor could either of them have been injured therein without some overt act by one of them, which directly brought about his or her injury.
It is not alleged that the stepladder on which the child herein was “caught” or “pinioned” was in any way more dangerous than any other of like kind, or that it was in any way defective or insecurely placed. Neither is it alleged that it broke, fell or moved. It appears from the complaint that the stepladder was perfectly safe for the purpose.for which it was being used.
It cannot be said that there is anything uncommon or unusual about a stepladder. They are present in [190]*190nearly every home and the danger of falling from them is known to children as well as to adults. While there may be some danger incurred by a small child who climbs a stepladder, it cannot be said that such danger is uncommon or of such a nature that reasonably prudent men would, under the circumstances related in appellant’s complaint, put something across the entrance in the building described in the complaint to keep children from entering and climbing on a stepladder placed as described in the complaint.
Measured by any rule to which our attention has been directed or which by our own research we have been able to find, it cannot be said that a partially constructed building is such a dangerous instrument or instrumentality as to require the owner or builder to erect something across the entrance thereto for the purpose of preventing children of the vicinity from playing therein. When the “location of the premises, the purpose for which they are used, the probability of injury therefrom, the precautions necessary to prevent . . . and the relations such precautions bear to the beneficial use of the premises” are considered in relation to the facts as stated in the complaint herein, we must conclude that appellees were under no legal duty to barricade or place something across the entrance to the semi-completed building to keep appellant’s children from entering and playing therein.
Since the rescue doctrine under which appellant seeks to recover applies only where the situation which invites rescue is created by the tortious act of the defendant or by one for whom he is responsible, 65 C. J. S., Negligence, §124, p. 738, supra; and the only tortious act here alleged is the failure to barricade an entrance to the building, and since ap[191]*191pellees owed no legal duty to the child, who became frightened while climbing the stepladder, to barricade the entrance to the building to keep him out, appellant cannot recover under the rescue doctrine.
The complaint herein fails to show a legal duty owing by appellees to appellant’s children, hence one of the elements of actionable negligence is absent and the complaint does not state facts sufficient to state a cause of action. A demurrer thereto for this reason was properly sustained and the judgment of the trial court should be affirmed.
Judgment affirmed.
Emmert, C. J. and Gilkison, J. dissent with separate opinions.