Goldmann, Freund and Conford. The opinion of the court was delivered by Conford, J.A.D.
In recent years the Supreme Court has placed this State in the considerable and growing company of jurisdictions which have accepted section 339 of the Restatement of Torts as the basis for the liability of a possessor of land for bodily harm sustained thereon by child trespassers. Strang v. South Jersey Broadcasting Co. , 9 N.J. 38 (1952); Harris v. Mentes-Williams Co., Inc. , 11 N.J. 559 (1953); and see McGill v. United States , 200 F.2d 873 (3 rd Cir. 1953); Prosser, Law of Torts (2 d ed. 1955) § 76, pp. 439, 440; Note, The Attractive Nuisance Doctrine -- Its Status in New Jersey , 8 Rutgers L. Rev. 378 (1954). This advance has not been without overtones of concern. See the dissent in the Harris case, supra (11 N.J. , at pp. 563, 564); the Note cited supra (8 Rutgers L. Rev. , at pp. 385, 387); and Ireton, Torts [in New Jersey 1952-1953], 8 Rutgers L. Rev. 181, 183 (1953). The appeal before us involves the application of the rule to a boy of 13 1/2 and the admeasurement of the respective spheres of responsibility of trial judge and jury.
On March 6, 1953 plaintiff, aged 13 years and almost 8 months and an eighth grade elementary school student, "played hooky" from school with a companion and decided to go to play on what was known as "the chemical hill" at Halladay Street in Jersey City. This appears from the testimony and a photograph in evidence to consist of a huge mound of chemical refuse accumulated on property of the defendant over the years as a by-product of its nearby chemical manufacturing operations. The pile was some 50 feet high and seems to have had the general aspect and contour of a hilly ridge. It is in an urban, mixed industrial and residential area, bordered by city streets. Testimony elicited
from the plaintiff on cross-examination indicates that defendant's workmen dump refuse on the mound or pile by running hand cars on rails from across the street up onto the pile and that plaintiff saw such operations in progress on the day of the incident here involved. Plaintiff and other boys had been accustomed to climb and play on the pile frequently for years past. He said that at times as many as 15 boys would be playing there at one time. He was never warned away by signs or verbal direction of any one. There was no fence or other obstruction to free access.
On the day mentioned the two boys climbed to the top, partly with the aid of foot-holes previously notched in the hill, and played on the top for about an hour. Deciding to descend, the other boy went down first, and the plaintiff, standing three feet from the edge of the top ledge, was suddenly precipitated to the ground when the ledge caved in. This action is to recover damages for the injuries consequently sustained, including a broken leg.
The following is the only testimony bearing directly on plaintiff's knowledge concerning the consistency of the contents of the pile or mound. It was given on cross-examination:
"Q. Joe, I think you said to Mr. Sorin before that while you were on the ledge just before you fell there were two workmen who were unloading a hand car with refuse in it; is that right? A. Yes, sir.
Q. And that's loose refuse, isn't it? A. Yes, sir.
Q. That is what the whole pile consists of, doesn't it, refuse from the plant? A. Yes, sir.
Q. You know it's loose stuff, don't you? A. Pardon, but it's not all loose.
Q. Some of it is loose? A. Some of it, yes.
Q. You knew that the men are constantly putting refuse on top and taking it off and working round there in general, didn't you? A. I guess I didn't realize it, sir.
The Court: The question is did you, not whether you realize it. Did you?
The Witness: Well, sir, I knew they were working around there in general but not shifting the piles.
Q. You knew part of the pile, at least, was composed of loose material, isn't that so? A. Part of it, yes, sir.
Q. You knew that before you climbed up there, didn't you? A. Yes, sir."
At the time of the trial, 27 1/2 months after the accident, plaintiff was one month short of 16 years of age. Before the date of the accident his school grades had been "good." He was an "average" student and he graduated from elementary school the following June. For some unexplained reason, however, he was only finishing his first year at high school at the time of the trial.
After conclusion of the plaintiffs' case the trial judge granted a motion to dismiss. He said the Strang case, supra , was not applicable as
"The plaintiff in question is not a child of such tender years but was at the time of the happening of the accident thirteen years and eight months of age. The question of contributory negligence of the infant is not involved in my ruling. * * * The duty of a possessor of land to trespassing children does not extend to those conditions the existence of which is obvious even to children and the risk of which is fully realized by them. In this case the infant plaintiff was of sufficient age and understanding to fully appreciate the dangers inherent in his climbing up and down the pile of chemical waste material in question. Certainly, this boy was at least of average intelligence, if not more, as manifested, for his thirteen years and eight months of age. * * * I am satisfied from the proofs presented and all the favorable inferences that could be taken therefrom in favor of the plaintiffs, against whom this motion is made, that the proofs do not establish the breach of any duty which it is alleged the defendant owed to the infant plaintiff in this particular case, particularly to protect a child of immature age from his own acts of indiscretion."
While the case before us appears to narrow to the question of the age and capacity for appreciation of the danger of the particular child, analysis of the problem will reveal the close relevance of the nature of the causative condition. In view thereof, it will be useful at the outset to set forth the entirety of the text of section 339 of the Restatement:
"A possessor of land is subject to liability for bodily harm to young children trespassing thereon caused by a structure or other artificial condition which he maintains upon the land, if
(a) the place where the condition is maintained is one upon which the possessor knows or should know that such ...