that the minor plaintiff did cross the defendant's property to gain access to the railroad tracks we have not found any law which supports a duty on the part of an adjoining landowner, the defendant in this case, to the minor plaintiff in connection with this accident.
The plaintiffs seek to hold the defendant landowner liable for injuries sustained by the minor plaintiff on the basis of an alleged dangerous condition existing on the railroad right-of-way and not on the defendant's land, a condition not created or maintained by the defendant and over which he had no control. The plaintiffs contend that because the railroad right-of-way is immediately adjacent to the defendant's unfenced land and because small children living in the vicinity have played on this land, then the law imposes upon the defendant a duty to erect a fence or other protective device on his land and provide adequate warnings to the children of the dangerous condition. Under the law of Pennsylvania, which is the substantive law the Court must apply to the evidence in this case, we have found no authority holding that a possessor of land is under such a duty.
The law of Pennsylvania as to the duty owed by a possessor of land to trespassing children has undergone considerable change since the early days when the Pennsylvania courts disposed of most child trespasser cases by holding that the possessor of land owed no duty to the child trespasser except to refrain from willfully or wantonly injuring him. The courts developed a theory imposing liability for injuries to child trespassers known as the "attractive nuisance" doctrine. Under this doctrine, the possessor of land is liable for injuries to trespassing children caused by a structure or other artificial condition maintained on the land, which the possessor knows or should know that children are likely to trespass upon without discovering the condition or realizing the risk involved. Thompson v. Reading Co., 343 Pa. 585, 23 A.2d 729 (1942); Krepcho v. City of Erie, 145 Pa.Super. 417, 21 A.2d 461 (1941). The "attractive nuisance" doctrine applies only where the landowner brings on his land or permits thereon, something of an artificial nature which is both attractive and dangerous to children. Nichol v. Bell Telephone, 266 Pa. 463, 109 A. 649 (1920). This doctrine lends no legal support for the plaintiffs' claim since under the decided cases the "attractive nuisance" doctrine has never been extended to impose liability on landowners for conditions which exist on an adjoining third-party's property.
Another doctrine has been developed by the courts imposing liability on a possessor of land for injuries to a child trespasser. This doctrine is known as the "playground rule". The "playground rule" is based on the theory that a landowner's toleration of children on his premises for a sufficient time imposes on him a duty to use ordinary care to keep his premises safe. Prokop v. Becker, 345 Pa. 607, 29 A.2d 23 (1942). Under the "playground rule", a landowner who has knowledge or reason to believe that his premises are being used as a playground by children may be held liable for injuries to such children caused by his failure to use ordinary care in keeping the premises safe. Although there is some evidence in this case that the defendant had, or should have had, knowledge that children played on his property, the "playground rule" has never been extended to impose liability for conditions which exist on an adjoining third-party's property and thus is of no avail to the plaintiffs in this case. The Supreme Court of Pennsylvania has limited the application of the "playground rule" to accidents arising from latent dangers on the landowner's property. McHugh v. Reading Co., 346 Pa. 266, 30 A.2d 122 (1943).
In 1942, the Supreme Court of Pennsylvania adopted the rule as to trespassing children set forth in Section 339 of the Restatement of Torts. Thompson v. Reading Co., 343 Pa. 585, 23 A.2d 729. Section 339 of the Restatement of Torts, Second, provides:
A possessor of land is subject to liability for physical harm to children trespassing thereon caused by an artificial condition upon the land if
(a) the place where the condition exists is one upon which the possessor knows or has reason to know that children are likely to trespass, and