Explaining the Fight over the Attractive Nuisance Doctrine

A Kinder, Gentler Instrumentalism in the “Age of Formalism”

Bibliographic Data

ID12073935
AuthorsPeter Karsten (corresponding author)
Year1992
Volume10
Issue1
Pages45-92
Publication date1992-01-01
Peer ReviewedYes
Open AccessYes
TypeARTICLE
VenueLaw and History Review (JOURNAL)
Journal identifiersISSN: 0738-2480 • E-ISSN: 1939-9022
PublisherCambridge University Press (CUP) (PUBLISHER)
DOI10.2307/743814
OpenAlexW2100887021
LanguageEN
Citations received2
References cited22

One sunny summer Sunday, on August 17, 1873, an Irish-born day laborer named Fitzsimmons, “of very limited circumstances,” living in a shack in Ft. Leavenworth, Kansas, sent his twelve-year-old son, Jerry, to fetch the family's cow. The animal had been left on an “open common” grazing area near the local sheds and yards of the Kansas Central Railroad. Fitzsimmons had warned his son to stay away from the railroad company's trains, but he had never mentioned, and may never have known of, a curious device that stood near the commons. For the past three years, a large iron turntable had served to reverse the direction of the company's locomotives (see figure 1). The Fitzsimmons family cow had wandered to a spot close to this turntable, and Jerry Fitzsimmons climbed onto this device as two or three other, older children began to turn it around. The Fitzsimmons boy sat on the end of the table with his legs hanging over its rails. Before he realized what was happening, the rails of the turntable came into alignment with those of the adjacent track, and his left leg was caught between the two rails and badly mangled, requiring its amputation. His father sued the company for negligence, and a jury awarded him three thousand dollars and court costs; the company appealed the decision, and the Kansas Supreme Court ordered a new trial, but in 1879 it upheld that second jury's award and finding of the company's liability. The high court cited decisions of the United States Supreme Court and of the Minnesota Supreme Court in its opinion

Doctrine · Irish · Jury · Political science · Recklessness · Sociology · Supreme court · American Constitutional Law and Politics · American History and Culture · History · Law · Legal and Constitutional Studies · Philosophy