use to which it was put by the defendant, was of a type in common use, and it does not appear that one had before ever been exploded. It was not necessary, in the conduct of defendant's business, to leave the wagon in the street or to leave it, with its contents, anywhere. They had been removed from the gas mains by pumping, and were usually, if not always, finally deposited in the river. The vent in the top of the tank was 14 inches in diameter, and had been left open to permit the escape of such illuminating gas as was contained in the tank. The contents of the tank had been placed there during the afternoon, the wagon was brought directly from work, the horse put in a nearby barn for the night, and the wagon drawn up, along with other vehicles, within a few inches of the curb in a paved city street in a well built up and populated neighborhood. This at about 5:45 p. m. Within ten minutes after it was so left, two boys, one living close by, had been on the wagon, had been put off by a man employed (but not by defendant) at the barn, had again climbed onto it, the tank had been exploded, and plaintiff, who had trespassed only by climbing to and sitting upon the seat, and was not six years old, had been badly injured. Children had been in the habit of playing on the wagon. "We used to get up there and play band on the wagon." That defendant had actual knowledge of these trespasses is not proved. Those in charge of the barn where defendant's horse was boarded, and near which its wagon was left, did know that children played on the wagon. They did not know that the wagon contained, at any time, the explosive gases. The plaintiff would not have been injured if he had not been on the wagon. Eight jurors found, in answer to a special question, that the playmate of the injured lad exploded the tank with a lighted match. No other cause for the explosion is shown.

Defendant is chargeable with notice that if fire or a spark was communicated to the contents of this tank an explosion was probable. That it could have made it

impossible to explode it by emptying it, and, perhaps, by properly filling all openings into the tank, is certain. It exercised a choice, and instead of requiring that the wagon be emptied, or be locked up in some building, left it exposed in the street, to the chances of the street. I am not inclined to hold that the conduct of defendant was so reckless that the acts of any person who should be injured are of no consequence; or that it was maintaining a public nuisance. The leaving of the wagon in the street in violation of a city ordinance was not negligence, because it was a breach of no duty owed to plaintiff. Flanagan v. Sanders, 138 Mich. 253; Stark v. Lighting Co., 141 Mich. 575 (1 L. R. A. [N. S.] 822).

We come, then, to the question whether defendant should reasonably have foreseen what did actually occur and so owed a duty to this child, although he was a trespasser, because he was a child and because children may be expected to climb upon wagons left in the street; and to the further question whether a jury or the court ought to determine if such a duty existed. I have reached the conclusion, having in mind the previous decisions of this court, that it should be said, as matter of law, that neither the known nor reasonably to be apprehended circumstances imposed upon defendant any duty to take care of or for trespassing children. It cannot be said to arise out of the mere fact that children may meddle with property. And if this could be, in view of our decisions, said, it was not to be reasonably apprehended that a trespasser would explode this tank. There is no occasion to cite authorities. They may be found well collected in 5 Michigan Law Review, pp. 357-362. And see Edgington v. Railway Co., 116 Iowa, 410 (57 L. R. A. 561). The case at bar and Powers v. Harlow and O'Leary v. Telephone Co. are to be distinguished by the circumstance that in each of those cases a duty to take care existed notwithstanding the fault of the plaintiff. To affirm the judgment, we should have to extend the application of the

principle of Lynch v. Nurdin, 1 Adol. & E. (N. S.) 29, beyond that originally intended to be given it.

The judgment should be reversed.

HOOKER, J. That the plaintiff was a trespasser upon the property of the defendant, at the time he was hurt, is not open to question. See Ryan v. Towar; 128 Mich. 463 (55 L. R. A. 310); Kaumeier v. Railway Co., 116 Mich. 313 (40 L. R. A. 385); O'Leary v. Telephone Co., 146 Mich. 243. He and another boy engaged in a common trespass, and as a result of, or coincident with, this trespass the explosion occurred. If, as the testimony indicates, and as eight of the jurors found, it was the result of intentional ignition by one of the boys, or if the ignition was occasioned by an unforeseen and highly improbable accident, the case is distinguishable from the case of O'Leary v. Telephone Co., supra. In that case Mr. Justice BLAIR said:

"There is reasonable ground for distinction between a case where something is left in the highway, which can only injure a child by his meddling with it, and putting it into operation in the absence of the owner or person having it in charge, and a case like the present, when the owner is present operating the apparatus, and has actual notice that the children are attracted by the tackle, and will play with it unless prevented."

That case is authority for the proposition that where one sets in motion, and leaves unattended and unguarded, a machine not usually to be found in the highways, and one likely to be noticed and meddled with by children, such person is negligent, and a young child, incapable of contributory negligence, will not be denied relief, because of his placing his hand upon a rope, whereby it was drawn into the machine and injured. It is not authority for the proposition that a trespasser, who is injured by reason of the setting in motion of a machine, or intentional igniting and thereby causing an explosion of gas, by himself or a trespassing companion, in the absence of the owner, may recover damages for his injury, upon the ground that it

was the duty of the owner to anticipate such results from trespassing children. The farthest that any case has gone in this State, aside from the O'Leary Case, which I have attempted to distinguish, is to hold that where a child is licensed to go upon land, he is not a trespasser, and that the owner owes it to such a person not to leave dynamite cartridges in a situation likely to attract his attention and arouse his curiosity. The case plainly intimates that had the child not been lawfully upon the premises, the holding would have been different.

In this case the child had a right in the highway, but it was not by reason of a license from this defendant, as in the Harlow Case. There is no opportunity for the claim of an invitation to invade this wagon. On the contrary these children were expressly forbidden by a person in charge of the barn to climb upon the wagon. I am not prepared to say that there might not be a subjection of the public to hazards so great as to make an act transcend negligence and amount to wantonness. Leaving unattended a wagon load of dynamite might be such a case, and it is possible that the courts would hold that even a trespasser might recover in such a case, under the rule that a wanton injury of a trespasser is actionable. But this negligence cannot be said to be wanton. There was little reason to apprehend danger from this wagon. We may take judicial notice that it takes a flame, live coals, or red-hot metal to ignite a mixture of illuminating gas and air. It is demonstrated in our daily experience. Therefore, regardless of the question of negligence in leaving the wagon in the highway, the plaintiff's trespass should preclude recovery, the case being plainly distinguishable from and consistent with the O'Leary Case; and this is true whether the explosion was caused by ignition from the match of plaintiff's companion, or from some other cause not ascertainable. To hold otherwise is to extend the right of recovery beyond the O'Leary Case, and to disregard the rule of the case of Kaumeier v. Railway Co., supra.

We have settled the principle in this State that an owner of property owes no duty of care, except to avoid wanton or willful injury, to one who trespasses upon said property, that he is not required to anticipate and guard against a trespass, that there is a clear distinction between temptation and invitation, and that the ownership of an article which may attract children does not carry with it an obligation to guard it, lest trespassing children be injured through applying it to their own uses, and that in this respect there is no difference between adult and juvenile trespassers. That doctrine was deliberately adhered to and affirmed in Ryan v. Towar, 128 Mich. 463 (55 L. R. A. 310), which followed Hargreaves v. Deacon, 25 Mich. 1, where a child of tender years fell into an unguarded and "attractive" cistern upon the defendant's premises and was drowned. In that case this court did not overlook the humanitarian side of the question and said:

"There is some danger in dealing with these questions of confounding legal obligations with those sentiments which are independent of the law and rest merely on grounds of feeling or moral considerations. We feel, usually, more indignation at wrongs done to children than at wrongs done to others. But the law has not usually given them civil remedies on any such basis. Nor does it usually, if ever, impose any duties on strangers towards them, resting entirely on the fact that they are children. Those who have any special dealings with them, as parents, teachers, and employers, incur obligations appropriate to their relations and differing from those incurred towards others in proportion to the necessity of care and protection and the risk of injury. But those who have no such relations with them are not liable for negligence in carrying on their own business beyond what would be their liability to others, as well as children, who are equally free from blame.

"If, for example, a grown person, coming upon the premises simply by the permission of the occupants, had fallen into this cistern without any negligence, by stepping where there was no apparent danger, he would in law have stood just where this child did. The injury might have happened, as in Fisher v. Thirkell, 21 Mich.