M-r. Justice Hutchison
delivered the opinion of the court.
Felicita Eivera brought suit on behalf of her infant son Eafael Eivera for damages and alleged among other things that defendant owned and maintained at a certain corner of Plaza Degetau, in the city of Ponce, an establishment open to the public, to wit, a drug store and other lines of business including the manufacture and sale of ices and refreshments, in the making of which defendant used an electric motor operating machinery for the crushing of ice and the turning of freezers, the said motor being located within the said-establishment and in a place contiguous to that where the said refreshments were served; that the mother was employed by defendant as janitress of the said establishment and in consequence thereof and with the tacit consent of defendant, utilized the services of her son Eafael within the said establishment; that on a certain occasion and through the exclusive fault and negligence of defendant or its agents, and upon coming near the electric motor above mentioned, the child, without fault or negligence on his part, was caught by the blouse that he wore and seriously injured.' ■ ' ■
The complaint also charges that the defendant made use of" the services of the child, sending him onerfahds to the post office, to the refreshment counter after ices for the employees upstairs, to the place where the motor was situated for sawdust, etc., and that at‘the timé of the accident plaintiff was so employed. But inasmuch as the testi[472]*472mony with reference to these matters is conflicting and the court below found that plaintiff was not an employee of defendant, we may for the purposes of this opinion put this aspect of the case out of view.
■The fifth averment reads as follows:
■"That said accident and all the consequences thereof were due solely and exclusively to the fault, negligence and carelessness of the defendant, The Porto Rico Drug Company, its agents employees or subordinate's, such fault, negligence and carelessness consisting, among other things:
“(a). In that said electric motor was not protected, was without any safeguards, fence or enclosure or any contrivance that would prevent injury to any person passing close to where the said motor was installed.
“(h) In that said motor wa's located at the defendant’s establishment in a place of reduced size and greatly liable to injure or entrap anyone who might be passing by.
“(e) That notwithstanding the said conditions affecting the motor in question, nobody .was assigned to watch thereover and prevent persons from approaching too close thereto, nor was there any sign or warning of the danger that the motor might there cause.”
Defendant’s theory of the accident, as disclosed by the answer, may be found in the following paragraph:
“We admit that the accident mentioned in the fourth averment was due exclusively to the fault of Rafael Rivera and Felicita, Rivera, the fault of the latter consisting in allowing said Rafael Rivera to enter the place used for making ices against the express prohibition of the defendant corporation, and that of the former in entering the said spot, where • he and all other persons not em- . ployee's of the corporation were forbidden to enter, and in attempting to snatch a piece of ice from- the freezer while in operation without taking any precautions, approaching too close to the operating, machinery and allowing himself to be caught therein.”
The following extract is from the statement filed by the trial judge:
“From the- oral evidence and the ocular inspection, the court makes the following findings of fact:
“1. That under regular conditions, that is, when operating the [473]*473freezers, the size of the latter effectively prevents the body of a person approaching the same from coming into contact with the ■gearing.
“2. That even without the freezers the gearing cannot come into •contact with the body of a person of plaintiff’s size unless he gets up on the platform where they are installed.
“3. That there is a sign on the door leading to the retail store reading ‘Private.’
“4. That there is sufficient space to pas's through the ice department without running any risk of being caught in the machinery.
‘ ‘ 5. That the pinions revolve at moderate speed.
“6. That the gearing is supplied with an enclosing device preventing all contact therewith at the volition of the operators.
“7. That only operators have any need to go through the machinery department.
“8. That the plaintiff was in no respect an employee of the •defendant.
“9. That he had neither right nor business in the department •destined to the manufacture of ices. His admittance thereto had been expressly prohibited by the employees • of the defendant and he was a trespasser.
“And whereas in the case of Morales v. Central Machete, 9 P. R. R. 117, it is stated:
“ ‘Every person who without any right whatever enters upon the property or. into the establishment of another is a trespasser and does so at his own risk, and if he should sustain any injuries from the working machinery he will have no right of action for «damages unle'ss such injuries are inflicted voluntarily and intentionally. ’
“Wherefore the court is of the opinon that the defendant is not guilty of any negligence and that the aeeident was caused by the sole and exclusive negligence of the plaintiff.”
The brief for appellee closes with the following paragraphs :
“The child Rafael Rivera was a trespasser; at most, a licensee, if the pleading of the complaint be accepted. 20 R. C. L., sec. 58, p. 57.
“Fact in the present case, that the injured person was a child.
“The danger was obvious even in the ease of a child. 20 R. C. L., sec. 82, p. 93. v
[474]*474“The negligence of the mother is chargeable to him. 20 RO. L. sec. 128, p. 153.
“The same rule is in force in California. 52 Gal. 602; 66 Cal. 230; 64 Cal. 463; 118 Cal. 62.
“The child, admitting that he was an employee, acted contrary' to express orders. He cannot therefore recover. 18 R. C. L. 152.
“In any event the accident was not due to defective machinery or to the negligence of the employer in failing to afford protection to the employee's, but to the negligence of other employees. Fellow-servant rule. 18 R. C. L. 712; sec. 193.
“Attraction in case of child by reason of place.
“It may be said that Rafael was not-aware of the danger and was attracted to the spot by the apparent harmlessness of the apparatus. I's the turntable theory otherwise applicable to the ease? Rafael’s repeated statements that the machinery sounded like a merry-go-round seemingly indicates that an attempt has been made t© conduct the case along this line, but it must be borne in mind:
“(1) That Rafael 'states that he went to look for sawdust and. that he was passing by the place with .the sawdust when the accident occurred.
“(2) That he stopped to watch the work of the operators when, the apparatus was not running and could not therefore produce the noise of a machine.
“ (3) That his testimony showed that he knew perfectly well that this was the place for crushing ice and making ices and that it was not and could not be a merry-go-round.
“In sypnosis: No relation has been established between employer and. employee:. the negligence of the defendant has not been shown: the negligence of. the. child and his mother has been proved.”
In Morales v. Central Machete the plaintiff was an adult' who brought, an action., .under tine .Employer,’s Liability Act of Máreh 1,1908, and therefore, of course, in order to recover was required to..show; among other things, that he was an ¿rapio,yee of, t]ie de^eadant.' ;In . these .circumstances this court said:
‘^iThe 'eVidéiice'tak;eh'alí'/togéthef Tails to‘show satisfactorily that the plaintiff wás in the employ of 'the1' defendant!, It rather shows ffiiat he was an intruder or a trespasser on tlie premises' of the [475]*475Central Machete, and that his pre’sence there was unknown to the authorities of the company.”
Moreover, in the ease at har as suggested by the extract from the brief for appellee, supra, the machinery was not in motion when the child approached the same, hut plaintiff was caught when the motor was started by defendant’s employees; and, even in the case of an adult trespasser, there is am important distinction to be drawn between a mere passive omission or failure to exercise ordinary care and some active positive step as the proximate cause of the injury.
Thus in Rome Furnace Co. v. Patterson, 120 Ga. 521, the court after pointing out that Patterson was a trespasser says:
“It is evident, therefore, that the defendant owed the plaintiff no duty, so far as the condition of -the premises was concerned, when he entered. He took whatever risk there was in going into the house, both as to its condition and the manner in which the defendant’s work was being carried on therein. Still, we think that, even as a trespasser, he would have the right to recover for any injuríete sustained by him in consequence of the defendant having negligently and recklessly set in motion any destructive agency or force the natural tendency of which would be to imperil his life, if at the time of such negligent and reckless act the defendant knew or ought to have known, that he was where he was likely to be injured ' thereby. ’ ’
. In Felton v. Aubrey, 74 Fed. 350, tbe Circuit Court of .Appeals, 6th Circuit,- speaking through Judge Lurton, said:.
It seems to ús that many'of the American eases which we have cited-' fail to draw the proper distinction between the liability of an owner of premises to persons who sustain -injuries as a result of the mere condition of the premises and those who come to harm by;,irqason'-of. subsequent conduct of the licensor; 'inconsistent with thevsáfety of persons-permitted to go upon his premises, and who'm he ¡ Was bound to anticipate might avail them'selves' of his license. This distinction seems to be sharply emphasized' in the ease of [476]*476Corby v. Hill, and. is a distinction which, should not be overlooked. If there be any substantial difference between the legal consequence of permitting another to use one’s premises and inviting or inducing such use, the distinction lies in the difference between, active and the merely passive conduct of such a proprietor. It may be entirely consistent with sound moral's and proper regard for the rights of others that the owner of premise's should not be held liable to one who goes upon another’s premises for his own use’s, and sustains some injury by reason of the unfitness of the premises for Such uses, not 'subsequently brought about by the active interference of the owner. If such person goes there by mere sufferance or naked license, it would seem reasonable that he should pick his way, and accept the grace, subject to the risks which pertain to the situation. But, on the other hand, if with knowledge that 'such person will avail himself of the license, the owner actively change the situation by digging a pitfall, or opening a ditch, or obstructing dangerously the premises which he has reason to believe will be traversed by; his licensee, sound morals would seem to demand that he should give reasonable warning of the danger to be encountered.”
Thomas Aubrey, plaintiff in the ease last mentioned, was a boy nine years old, but there is nothing in the opinion suggestive of any intention to distinguish between adults and infants of tender years in applying the doctrine, and' in Ellsworth v. Metheney, 104 Fed. 119, the same court, m an opinion by Judge Day, after pointing out that Metheney “was not engaged in the business of his employer at the time' of the injury, but came to his death during the noon hour while returning from a visit undertaken upon his own volition outside the part of the mine in which he was employed,” held that the court below erred “in treating the case as one turning upon the duty owing by the employer to the employee injured in the course of his duty.” But.the court proceeded to say:
“Admitting that, while not engaged in the course of his employment, Metheney was not entitled to the protection of an employee, he was, nevertheless, a licensee using the entry with the implied consent of the employer.” . ; , .
[477]*477Then, after quoting with approval from the opinion by Judge Lnrton in the Felton Case, the court adds the following:
“Applying the doctrine herein stated to the facts developed in the present case, we do not perceive why the owner of the'mine who actually changes the situation of previous safety by introducing an-electric wire insufficiently insultated to prevent injury to those who may come in contact therewith, in a place where he knows or has the means of knowing that the workmen are likely to congregate, is not equally liable with the owner of premises who may ‘actively change the situation by digging a pitfall, or opening a ditch, or obstructing dangerously the premises which he ha's reason to believe will be traversed by his licensee.’■ In the case at bar, as well as in the one put by Judge Lurton, we are of the opinion that sound morals and just treatment demand that the licensee shall have notice of the new danger which he i's likely to encounter in using the premises.”
In Ziehm v. Vale, 120 N. E. 702, the Supreme Court of Ohio distinguishes a previous ■ Case and justifies the later decision ip this wise:
“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.”
See also Brinilson v. Chicago & N. W. R. Co., 32 L. R. A. (N. S.) 359, and other cases cited in note to O’Brien v. Union Freight Co., 36 L. R. A. (N. S.) 492.
In the instant case plaintiff was nine years of age at the time of the injury and, for the purposes of this opinion, it may he conceded, without holding, that a child of that age may be technically a trespasser, although the courts are not unanimous upon this point, and there is some very respectable authority for the contrary view. See Lynchburg Tel. Co. v. Bokker, 50 S. E. 148; Dublin Cotton Oil Co. v. Jarrard, 97. Texas, 289, 42 S. W. 959, and other cases cited [478]*478in the note to Walsh v. Pittsburgh Ry. Co., 32 L. R. A. (N. S.) 560.
Conceding further, for the sake of argument only, that plaintiff herein was technically, as found by the trial judge, a trespasser, yet we cannot concur in-the application sought to be made of the harsh doctrine announced in Morales v. Central Machete and invoked by the court below.
Judge Thompson in his Commentaries on the Law of Negligence, Yol. 1, at page 938, after discussing the general rule which exonerates from liability the owners and occupiers of premises for injury to children coming' thereon, says:
“One doctrine under this bead is that if a child trespasses upon the premises of the defendant, and i’s injured in consequence of something that befalls him while so trespassing, he can .’not recover damages, unless the injury was wantonly inflicted, or was due to the recklessly careless conduct of the defendant. This cruel and wicked doctrine, unworthy of civilized jurisprudence, puts property above humanity, leaves entirely out of view the tender years and infirmity of understanding of the child, indeed hfc inability to be a trespasser in sound legal theory, and visits upon him the consequences of his trespass just a's though he were an adult, and exonerates the person or corporation upon whose property he is a trespasser from any measure of duty towards him which they would not owe under the same circumstances towards an adult. In one of these cases the court was not ashamed to say: ‘The circumstance that the trespasser in this instance was a boy ten years of age cannot affect the application of the rule. The defendants owed him no greater duty than if he had been an adult. They are not subject to the obligation to take precautions against any class of persons who may walk on and along their tracks.’ In another case, where a boy seven years old was killed while attempting to ride upon a hoisting machine, the judge who wrote the opinion of the court, quoting from a previous decision of the court, was not ashamed to say: ‘The boy was in a place where he had no right to be and where he was not entitled to any protection from the defendants against his own reckless trespass.’ So severely has this doctrine been applied, that it has been held that a child can not recover damages for an injury which was the direct con[479]*479sequence of its own trespas's, although the trespass was committed under the control or coercion of its parent or guardian. Another court, with some humanity, has qualified that doctrine by saying that, except when a child is seen in time so that the injury to it may he averted, persons who are lawfully using, or carrying on business on their own premises are not liable for injuries to children, unless, under the same circumstances, they would have been liable to adults who were equally free from fault.
This hard doctrine is so applied as to allow a proprietor to leave upon his premises, exposed to children of the neighborhood, dangerous objects of such a character as to attract their childish instincts, and to escape liability if a child attracted by such object is killed or injured by it, — on the ground that the child is a trespasser, and that the leaving of dangerous objects so exposed as to tempt him to his death is not wanton or reckless negligence. Under this draconic doctrine the youth of a wrong-doer and trespasser, although he acted as reasonably as might be expected of him, if his conduct contributes to the injury which he receives, will not prevent his contributory fault from constituting a defense in favor of a person or corporation whose negligence also contributed to the injury. Applying this, doctrine, it was held that a street railway company is not liable for an injury caused by an unfastened1 brake, to a boy ten years old, who, when injured was playing with other children upon the cars left standing uncared for several days on a public street in a city. One court has gone even further, and, speaking through a judge who afterwards laid a’side his judicial robes to become a receiver of an insolvent railroad company, declared in unqualified language, in a suit.brought by a father as next friend of his child seven years of age, the infamous proposition that where a child is a trespasser upon the train of a railroad company, whether with or without the consent of it’s father, ‘the defendant company owes no duty and is not liable for injuring it.’ Moreover, it seems that the law is so tender of the rights of street contractors as to hold that they are under no duty — such is the form of judicial expression — to employ men to keep children from playing on moving dump ears. Another court, with a clearer perception of justice, holds that a railroad company is bound to use reasonable care to anticipate and prevent an injury to a child of such tender years as to have little or no discretion, though the child be a trespasser. Another court, which is usually con'servative of the right’s of property, dealing also with reference to a railroad com-[480]*480pan y, reasons that, while tender age can not raise a duty where-none otherwise existed, yet where a duty exists, the degree of care-required toward infants may he different from that required toward adults. But the helplessness of tender age can and ought to raise a duty where none would exist with reference to adults. Accordingly, it has been held that the conductor of a train upon which a child seven years old ha's become an intruder, is bound to use greater care in dealing with that child tiran he is required to exercise with older persons. It 'is some relief to know that this-rule against infantile trespassers does not extend to pits left unguarded in the public highway. There they are not intruders; but the city owes them the duty of knowing that they will resort to such a place, and of protecting them against falling into it.”
But, it is fair to add, the same author later concedes at page 962 of the same volume:
“If we do not attend so much to what the judges say as to what they in fact hold, we shall find that, in some of the eases-where their expression's seem odious to justice, the injury which befell the trespassing child was rightfully ascribed — not to his negligence-where he was so young a's to be incapable of negligence, nor to the negligence of his parent, guardian or custodian for which he ought not to answer, but to accident or misfortune attributable to his infantile inexperience and helplessness. Thus, in a case where the opinion contains expressions which are unworthy of a court of justice, it appeared that a boy six or seven years old, got upon a hall attached to a chain used as a hoisting apparatus for a mill, while it was in motion, for the express purpo'se of riding upon it, although warned by a companion not to do it, and rode to the height of three stories, when, becoming frightened, he lost his hold, fell to-the ground and was killed. Here it does not seem to have been an unjust conclusion that the proximate cau'se of the injury which befell the boy was his own childish fault, and not any negligence on the part of those in charge of the machine; but we can not possibly agree to the statement of doctrine contained in the opinion that they owed him no more duty than if he had been' an adult, and no duty at all, because he was a trespasser.”
Perhaps the judge would have found further comfort in Walsh v. Pittsburgh Ry. Co., supra, where the Pennslyvania Supreme Court upon the authority of an earlier case holds-[481]*481that “even trespassers are entitled to human consideration” and says that:
“If the man who started the motor knew at that time that the plaintiff was 'standing between the rails, close to the frayed cable, which would touch her dress when in motion, and from his knowledge of the circumstances was conscious that she would be exposed to danger if the machinery was put in motion, a duty of care arose, as it would in the ease of an engineer who see's a child on the track in front of his engine.”
And in White’s Supplement at page 170 we find the following somewhat more optimistic statement:'
“The better rule — and the one most strongly supported by authority — does not regard a child of tender years, lured upon the premises by reason of the existence thereon of something that appeals to hi's childish curiosity and instincts, as a trespasser. The law regards the existence of such an object or condition as an implied invitation to the child to enter the premises. ‘What an express invitation would be to an adult, the temptation of an attractive plaything is to a child of tender years.’ Under this rule a person who maintains on his premises a dangerous instrumentality., though not in itself attractive, but placed so near an attractive-situation on the premises as to form with it a dangerous condition,, may be liable for injuries to a child resulting therefrom, notwithstanding the attractive situation is not in itself dangerous. Whether the premises in a given ease are sufficiently attractive to entice a child into danger and suggest to the owner the probability of accident, are questions of fact for the determination of the jury.”
In Heller v. N. Y. New Haven & Hartford R. R. Co., 265 Federal, 192, the third paragraph of the syllabus reads as follows:
“A railroad company, which maintained ah electric feed wire alongside its track, 29 inches from an abutment, where it pas'sed under a highway bridge 22 feet above the track, held not chargeable with negligence, which rendered it liable for the death of a boy 10 years old, who climbed on the abutment, and through an opening in the wire screen above it, and touched the wire with a tin can;, there being no reasonable ground to anticipate such action.”
[482]*482But at page 198 the Circuit Court says:
“If the defendant ought reasonably to have anticipated that children would he likely to resort to this particular place to play, and, if they did, that they would he likely to be injured, it was guilty of negligence in maintaining the place in its exposed state. It is 'sufficient to authorize a recovery in cases of this nature if it appears that cautionary measures of a reasonable character would have prevented the injury complained of, and that such measures were not taken by defendant.”
And in Louisville and N. R. Co. v. Steele, L. R. A. 1918 D, page 317. a Kentucky court of appeals held, to quote the syllabus:
“A railroad company whose conductor has" for a long time encouraged boys to catch rides on a train of which he wa's in charge is bound to anticipate that they will do so, and must exercise ordinary care to look out for and protect them from injury.”
In Ziehm v. Vale, supra, defendant was the owner and driver of an automobile. The opinion reads in part as follows:
“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 request, 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 ear, 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. .• . . .
“But when he concedes that he drove the child, first from the right running board, and again from the left running hoard, of his ear, 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 [483]*483not in error when it charged the jury upon the subject of the defendant using ordinary care under the facts disclosed.”
From a note on the so-called attractive nuisance doctrine in 19 L. R. A. (N. S.) beginning at page 1130, we take the following paragraphs:
“The owners of grounds may be liable for injuries to trespassing children where,. on account of the peculiar nature and exposed position of the dangerous defect or object, the owner should reasonably have anticipated such injury; and so, where the declaration alleged that a river drawbridge, located in a populous district of- a city, was very attractive and enticing to children, and dangerous for them to be about while being opened and closed, and that it therefore became the duty of the defendant, while moving and turning the bridge, to keep a reasonable lookout and watch over its approaches, and to use reasonable precautions to prevent children from approaching, and from being thereby injured, it was held that the question should be left to the jury whether the swinging bridge was a dangerous structure, in which the defendant should reasonably have anticipated that a child would catch its foot while attempting to-jump upon it, and whether the servants of the defendant in charge of the bridge used ordinary and reasonable care and precautions to prevent the happening of the injury.” Coppner v. Pennsylvania Co., 12 Ill. App. 600.
“The owner of unprotected revolving cogwheels, located in an open space, 20 feet -from a street, is liable for injury to a three-year-old child by the machinery, and the fact that the child was a trespasser does not matter. Whirley v. Whiteman, 1 Head, 610. The court said that, in playing about the cogwheels, the child was but indulging the natural instincts of a child.
“In Hydraulic Works v. Orr, 83 Pa. 332, a heavy platform so built that it could be raised or lowered across a private cartway in the heart of a city, close to a public highway, access to the premises being frequently left open, was held to be a dangerous trap when it was raised and unfastened and made to lean against a building at such an, angle that a slight jar or pull would cause it to fall, and the owner of the premises was therefore liable for the death of a six-year-old boy who, with others, strayed into the passageway through a gate that had been left open, and was playing there when the platform fell upon him. The decision rests bn the ground that the owner of the premises' might reasonably' have [484]*484apprehended such an accident. In this case the trial court, in response to the request to charge, stated that a child could not be treated a's a trespasser or wrongdoer.
“A good cause of action for injury to a child was held stated in a declaration which alleged that the defendant operated an unguarded planing mill, situated in an open lot where children were allowed, with the knowledge and consent of the defendant, to congregate and play, the place being adjacent to certain streets and highways in the midst of a thickly settled and populou's district of a city, and supplied with dangerous machinery, including revolving interlocking cogwheel's of such a character as to be attractive to children, and to appeal to their childish curiosity, to the defendant’s knowledge, and which alleged that a nine-year-old boy drawn to such dangerous machinery by childish curiosity, was injured thereby while exercising due care and caution for his own safety.” Jensen v. Whetherell, 79 Ill. App. 33.
“In Dublin Cotton Oil Co. v. Jarrard (Tex. Civ. App.) 40 S. W. 531, a girl caught her foot in open conveying machinery in a cotton-seed mill and wa's hurt. It was urged that if she was there merely with the consent and knowledge of the defendant, the only duty owed to her was to refrain from doing acts knowing the eoinsequences of which would be injurious to her; and that if she was there not upon express or implied invitation, nor by permission or eon'sent, then she was an intruder, and could recover nothing for injuries not wilfully and knowingly inflicted. But the court said that while this proposition might be urged against an adult with experience and judgment, it was not the law governing our duties to little children, who, like the bees and the -butterflies, wandered everywhere and into every place left open, as their childish instincts and impulses led them. They were not trespassers or intruders within the meaning of the law until they were old enough and intelligent enough to know and appreciate the right of the proprietor to exclude them from his premises by a simple command. They understood that they were required to keep out only when they could not get in. They paused not to read the signs of warning or to inquire if they were welcome.
“A corporation maintaining over a body of water a revolving shaft with a coupling containing a projecting set screw, the shaft being 'supported by a timber framework which, together with the .machinery and surroundings, is attractive to children, who are in the habit of resorting thereto for the purpose of amusement, men and [485]*485boys being accustomed to climb about on the timbers for the purpose of fishing, to the knowledge of the company, was held liable for the death of a fourteen-year-old boy who, in climbing upon the structure was caught by the 'set screw and wound around the shaft. Biggs v. Consolidated Barb-Wire Co., 60 Kan. 223, 44 L. R. A. 655, 56 Pac. 4. To the same effect is Biggs v. Consolidated Barb-Wire Co., 62 Kan. 492, 63 Pac. 740.
“Whether, in any given ease, there has been negligence on the. part of the owner of property in maintaining dangerous machinery upon it, is a question of fact, dependent upon the situation of the property, and the attendant circumstance's; because upon such facts will depend the degree of care necessary to guard others against injury therefrom.” Barrett v. Southern P. Co., 91 Cal. 296, 25 Am. St. Rep. 186, 27 Pac. 666.
And in another note contained in L. R. A. 1917 F, at page 67, we find the following:
“On the question of contributory negligence of children between the ages of nine and thirteen, inclusive, the principal conflict in the eases is in respect to the question of presumption of capacity or incapacity. As already ‘shown, such a presumption is held in some states to obtain until the child reaches the age of fourteen. Thus, the doctrine of prima facie presumption of .incapacity on the part of a child to' contribute negligently to an injury has been recognized in Pennsylvania in cases of injury to children of nine, eleven, twelve and thirteen years of age. And the same doctrine has been recognized in Mississippi in the case of injury to a child ten or twelve years old. On this point, in an action for the death of a thirteen-year-old boy who was killed while employed in the defendant’s mine, the court in an Alabama case, in holding thar the question of contributory negligence had been properly left to the jury, said: ‘It may be true that contributory negligence may under some conditions be imputed to an infant under fourteen years of age as a matter of law, as where the evidence of his ease and prudence and his capacity to exercise judgment and discretion is not in conflict,' and different inferences cannot be drawn therefrom. The fact however, that the infant was shown to be “bright, smart, and industrious”, without more, is not sufficient to overcome the presumption of that want of discretion which his age prima facie implies, for an infant may be all this, and yet be so wanting in judgment, and discretion as to make him rash and imprudent. ’
[486]*486“In most jurisdictions, however, the doctrine of prima facie presumption that children of from nine to thirteen years of age are incapable of contributory negligence does not appear to be applied, but such children are required to exercise care proportionate to capacity, discretion, knowledge, and experience, and if there is any presumption in the matter it is that they are capable of exercising some degree of care.”
The standard by which the conduct of a child should be measured in determining the question of contributory negligence is set forth in Rivera v. Successors of López Villamil, 29 P. R. R., 257, and need not be restated here.
“The doctrine of Hartfield v. Roper, which imputes negligence of parents or custodians to children, still obtains in full force in New York, the State of its adoption, and is followed in North Carolina. The doctrine originally accepted in Indiana, is now rejected by the courts of that State.
“The doctrine ofTmputed negligence in this connection is denied in recent decisions in Connecticut, Illinois, Indiana, -Iowa, Kentucky, Minnesota, New Hampshire, New Jersey, Ohio, Oregon, Tennessee, Texas and Vermont. In Connecticut it is held that the question of the negligence of the parents of a child in allowing it to play on the streets is immaterial, where it does not appear that the parents are in a position to be benefited by a participation in the distribution of the amount sought to be recovered in an action by the administrator for the wrongful death of a child.” Y/hite’s Supplement to Thompson’s Commentaries on the Law of Negligence, see. 292 and 293.
See also Sandel v. State, 13 Am. Law Rep. 1268, at page 1271, where a distinction is drawn in this regard between an action brought for the benefit of the infant and one for the injury or death of an infant brought for the benefit of the parents.
In the instant case on the day of the accident one of defendant’s employees, in breaking a block of ice, dropped a sledge hammer, which fell through the funnel or hopper of the ice-crusher into the machinery beneath. Shortly thereafter two other employees were repairing the damage and [487]*487plaintiff, whether observed or not, was a close observer. Upon finishing the job one of the employees last mentioned pnt the machinery in motion, and the injury to plaintiff followed forthwith.
If, aside from the repair work, the exposed cogwheels and the proximity thereof to the soda-fountain and to the street, the merry-go-round feature of the case were the only basis for the theory of an appeal to childish instinct, then we might be disposed to consider more seriously, even though not inclined to concede, the contention of counsel for appellee that no very satisfactory ground for an application of the turntable doctrine has been established.
But there is another and much more serious aspect. It may be true that the department managers and even their immediate subordinates did not utilize the services of plaintiff nor expressly authorize or consent to the use of such services by other employees. Yet there is testimony tending to show, and which we are persuaded all things Considered does show, that plaintiff on several occasions at'least was permitted, if not induced, by an assistant to the man in charge of the freezers, to wash bottles or other containers used in the making of the cold confections, and that as a reward for such services he was promised and received ice cream, or other frozen delicacies whenever the finished product was impregnated with salt or other admixture rendering it unfit for sale. Even the testimony for the defense, which does not concede so much, not only indicates an attitude of reluctant tolerance and acquiescence in the presence of plaintiff about the premises but also discloses that plaintiff was alert to find and appropriate any residue remaining in the containers when they were supposed to have been emptied, and that both he and other children had been repeatedly removed from the place where the accident occurred. Thus, from either point of view, and whether plaintiff be regarded as an invitee, a licensee or a technical trespasser, [488]*488tlie place where these sweetmeats were made became for him, and to, all practical intents and purposes, a baited trap; and defendant was put upon notice and had every reason to anticipate the presence of plaintiff at any time.
The accident occurred some three years prior to the date of the trial and view of the premises by the trial judge.' If the Case or covering found by him, and said to be so constructed as to open or close at the will of the operator, was there at the time of the accident, then the same must have been left open by the employees of defendant when the machinery was put in motion. Otherwise the accident could not have occurred. That the servants of defendant were guilty of negligence in starting the machinery without closing the open casing, and without looking to see whether or not plaintiff was in close proximity to the exposed cogwheels, where they had excellent reasons to expect he would be found, seems too obvious for serious discussion.
Upon the question of contributory negligence it will suffice to say that, while the finding in this regard might be permitted to stand if plaintiff were an adult, there is no satisfactory ground upon which to base such a conclusion, in the light of the rule above referred to as a standard for measuring the conduct of children; and the doctrine which imputes to children the negligence of parents, in an action brought for the benefit of the child, does not commend itself to our sense of justice.
The judgment appealed from must be
Reversed.
Chief Justice Del Toro and Justice Franco Soto concurred.
Justices Wolf and Aldrey dissented.