26 Wn.2d 891, R. L. DEFFLAND v. SPOKANE PORTLAND CEMENT COMPANY
[No. 30006. Department One. Supreme Court January 6, 1947.]
R. L. DEFFLAND, Appellant, v. SPOKANE PORTLAND
CEMENT COMPANY, Respondent.«1»

"An invitee is one who is either expressly or impliedly invited onto the premises of another for some purpose connected with the business in which the owner or occupant is then engaged, or which he permits to be conducted thereon; there must be some real or supposed mutuality of interest in the subject to which the visitor's business or purpose relates. [Citing authority:]" (Italics ours.)

[4] See, also, Christensen v. Weyerhaeuser Timber Co., 16 Wn. (2d) 424, 133 P. (2d) 797.

Jan. 1947] DEFFLAND v. SPOKANE ETC. CEMENT CO. 903

In the cited case, we defined a licensee to be one who goes upon the premises of another, either without any invitation, express or implied, or else for some purpose not connected with the business conducted on the land, but goes, nevertheless, with permission or at the toleration of the owner. Kinsman v. Barton & Co., 141 Wash. 311, 251 Pac. 563; Holm v. Investment & Securities Co., 195 Wash. 52, 79 P. (2d) 708; Schock v. Ringling Bros. etc. Shows, 5 Wn. (2d) 599, 105 P. (2d) 838.

[5] In Garner v. Pacific Coast Coal Co., supra, we also announced the rule relative to the duty owed by the owner or occupant of land to a mere licensee:

"A long line of decisions in this state has emphatically declared and definitely settled the rule that, as to a bare or mere licensee, the owner or occupant of land owes only the duty of not wilfully or wantonly injuring him. [Citing a long list of cases beginning with McConkey v. Oregon R. &Nav. Co., 35 Wash. 55, 76 Pac. 526, and ending with Holm v. Investment & Securities Co., 195 Wash. 52, 79 P. (2d) 708.]"

Appellant, undoubtedly realizing that he could not show that respondent had wilfully or wantonly injured Gerald Deffland, has relied upon the attractive nuisance doctrine as a basis for his right to recover, contending that it is an exception to the degree of care ordinarily owed to a licensee.

[6] The trial court was of the opinion that the deceased was a mere licensee, but considered the attractive nuisance doctrine and its applicability to the facts herein. This doctrine was discussed at length in the recent case of Schock v. Ringling Bros. etc. Shows, 5 Wn. (2d) 599, 105 P. (2d) 838. In that case, the court, after stating the rule relative to the duty owed by the owner or occupant of land to a mere licensee hereinbefore set out, stated:

"The trial court was of the view, however, and respondents now contend [as does appellant in the instant case], that this case presents an exception to the rule above stated, by virtue of the so-called `attractive nuisance' doctrine. That doctrine, which has been variously termed the `attractive nuisance,' `attractive agencies,' `attractive instrumentalities,' `torpedo,' or `turntable' doctrine, may be generally stated thus: One who maintains or creates upon his premises, or upon the premises of another, or in any public place, an instrumentality or condition which may reasonably be expected to attract children of tender years, and

904 DEFFLAND v. SPOKANE ETC. CEMENT CO. [26 Wn. (2d)

to constitute a danger to them, is under a duty to take the precautions that a reasonably prudent person would take, under similar circumstances, to prevent injury to such children."

The opinion in the cited case refers to and quotes from many decisions of this court, among them, Ilwaco R. & Nav. Co. v. Hedrick, 1 Wash. 446, 25 Pac. 335, 22 Am. St. 169, which was the first case in this state dealing with the question before us, and which involved a turntable. We stated in the Schock case, referring to the case last cited:

"The device had been left insecurely fastened, and with knowledge on the part of the owner that young children were attracted to it and were in the habit of playing on and around it. To have locked or securely fastened the table, the court found, would have entailed little inconvenience to the owner. In upholding a judgment for the plaintiff, this court said that

"`It was the duty of appellant to so secure it as to prevent injury to those who, by reason of their tender years [in that case a child between five and six years of age], were incapable of comprehending its dangerous character, either by locking it, or in some other way preventing access to it.'" (Italics ours.)

In the Schock case, reference is also made to Clark v. Northern Pac. R. Co., 29 Wash. 139, 69 Pac. 636, 59 L. R. A. 508, wherein a boy twelve years of age passed through a switchyard on his way `to a circus. He was twice warned to get off the premises, but nevertheless was permitted to proceed. While in the switchyard, he jumped upon a moving flatcar and, upon arriving near his destination, jumped from the car and was struck and killed by a freight train. Recovery was denied on the grounds that the boy was of sufficient age and experience to be chargeable with knowledge of the attendant danger; that he had not been invited to come upon the premises; and that he had been twice warned to leave. The court recognized the "turntable" doctrine, but observed that it had not been uniformly adopted by the American courts, and that it had been severely criticized by some. Reference, in the Clark opinion, to the Ilwaco case, supra, was followed by this statement:

Jan. 1947] DEFFLAND v. SPOKANE ETC. CEMENT CO. 905

"But, in view of the more modern tendency of the courts, we should, however, hesitate to extend the rule as one of general application to other conditions."

The Schock case also refers to Harris v. Cowles, 38 Wash. 331, 80 Pac. 537, 107 Am. St. 847, and, in regard thereto, states:

"A girl of tender years was injured when her wrist was caught between the jamb and one of the wings of a revolving door maintained by a family hotel, in the hallways of which children were accustomed to play. The court held that the doctrine of the turntable cases did not apply because it would have been manifestly impracticable to keep the door locked or guarded while it was serving the purposes for which it was intended. Continuing its discussion, the court then made the extreme statement that `this court will not extend the application of the doctrine of the turntable cases beyond a turntable itself.'

"However, in the very next case involving `this doctrine, as applied to machinery, McAllister v. Seattle Brewing & Malting Co., 44 Wash. 179, 87 Pac. 68, this court allowed recovery to a nine-year-old trespasser for injuries sustained upon a sheave wheel operated by the defendant upon an unopened, but used, street adjoining its premises. The court stated that the rule of wanton or wilful negligence had not been adopted in its entirety in this state; that, on the contrary,

"`Where dangerous machinery and dangerous substances of a character likely to excite the curiosity of children and allure them into danger, have been left unguarded in exposed places close to the highways, or play grounds of children, even though on the premises of the owner, and children have been attracted to them and met with injury, the owner or person leaving the dangerous machinery or substance is liable for such injury.'" (Italics ours.)