However, defendant and his wife did not jointly own the vehicle in question, unlike the defendants in the present case. Plaintiff also cites Gray v. Golden, 192 S.W.2d 371 (Ky. 1945) to support the application of the family purpose doctrine. In Gray, the court imposed liability under the doctrine against an owner-husband arising from his wife's negligent operation of the vehicle.
Thus it is stated in Wolfe vs. Rehbein, 123 Conn. 110, 193 A. 608, speaking of an owner or possessor of premises: "He is not ordinarily bound to anticipate and provide for the presence of trespassers since he may properly assume that they will not ordinarily be there. When, however, the owner knows or should know that children are likely to trespass upon a part of his land upon which he maintains a condition which is likely to be dangerous to them, he may be held liable for harm resulting to them therefrom." See to the same effect Indiana Harbor Belt R. Co. vs. Jones, 220 Ind. 139, 41 N.E.2d 358, Wellman vs. Fordson Coal Co., 105 W. Va. 463, 143 S.E. 160, Gray vs. Golden, 301 Ky, 477, 192 S.W.2d 371, Williams vs. Town of Morristown, (Tenn.), 222 S.W.2d 607, 612, Garis vs. Eberling, 18 Tenn. App. 1, 71 S.W.2d 215, Wolczek vs. Public Service Co., 342 Ill. 482, 174 N.E. 577, 580, Clifton vs. Operating Corp., 271 App. Div. 122, 63 N.Y.S.2d 597, Clinton vs. Lumber Co., 77 Ga. App. 643, 49 S.E.2d 143. See also 1 Thompson on Negligence (2d Ed.), Sec. 1030, 45 C.J. 748, Sec. 140 and page 750, Sec. 147, 3 Cooley on Torts, (4th Ed.) 204-205.
While we recognize that there may be a similarity between the master and servant or principal and agent rule, and the rule applicable to an action of this nature, we must consider also the purpose of the Soldiers' and Sailors' Civil Relief Act, recognizing that under Kentucky law the person primarily liable under the "family purpose doctrine" is not an essential party in a suit by an injured person. Gray v. Golden, 301 Ky. 477, 192 S.W.2d 371 (1946); McNamara v. Prather, 277 Ky. 754, 127 S.W.2d 160 (1939). The Soldiers' and Sailors' Civil Relief Act was adopted by the Congress to protect the rights of individuals in the military service of the United States, and also to protect the rights of individuals having causes of actions against members of the Armed Forces of the United States. Stewart v. Kahn, 11 Wall. 493, 78 U.S. [176], 20 L.Ed. 176 (1871); Wolf v. C. I. R., 264 F.2d 82 (3rd Cir. 1959); Thompson v. Reedman, 201 F. Supp. 837 (E.D.Pa. 1961); Zitomer v. Holdsworth, 178 F. Supp. 504 (E.D.Pa. 1959).
Dorris v. Stevens' Adm'r, 1936, 266 Ky. 602, 99 S.W.2d 755, 758. In this state the husband has been regarded as the head of the family, to the extent even that when he purchases and maintains a family car but takes title exclusively in the name of the wife he is nevertheless liable for her negligent operation of it. Gray v. Golden, 1945, 301 Ky. 477, 192 S.W.2d 371. When the head of the household is at the wheel of an automobile owned and maintained by him the fact that the wife is present on a social trip of community interest does not, in our opinion, raise an inference of joint control of the vehicle.
We may suppose that a person capable of contributory negligence who trespassed upon these tracks would ordinarily be barred from recovering damages for resulting injury. See Annotation, 47 A.L.R. 863. But we are concerned here with an infant completely incapable of discretion and wholly irresponsible for his own act. Generally, the doctrine of nonliability for injuries to trespassers applies to infants. Gray v. Golden, 301 Ky. 477, 192 S.W.2d 371. However, there are exceptions to this doctrine, namely, (1) where liability may be imposed under the law of attractive nuisance, and (2) where one maintains on his premises "something dangerous to children and so exposed that there is likelihood of their coming in contact with and being injured by it."
Ordinarily, trespassing children occupy the same position as trespassing adults except for special responsibility in case of attractive nuisances. Jones v. Louisville N. R. Co., 297 Ky. 197, 179 S.W.2d 874, 152 A.L.R. 1259; Gray v. Golden, 301 Ky. 477, 192 S.W.2d 371. But the doctrine of attractive nuisance is not applicable to a moving car or train. Swartwood's Guardian v. Louisville N. R. Co., 129 Ky. 247, 111 S.W. 305, 306, 19 L.R.A., N.S., 1112, 130 Am.St.Rep. 465. As said in the Swartwood case, "All who venture unbidden by the company and unknown to it upon its trains do so at their own peril, as they can have no right, and the company therefore owes them no duty, in such case. This rule also applies from the very necessity of the matter, without respect to the age or condition of the trespasser, for the court must deal with the question first of legal duty, not compassionable innocence.
Therefore, having and keeping radiator pipes uncovered in a building, is not a negligent act upon the part of the possessor of property. Appellee relies strongly upon Kentucky West Virginia Power Co. v. Stacy, 291 Ky. 325, 164 S.W.2d 537, 170 A.L.R. 1, to sustain his cause, but the Stacy case is distinguishable from the instant one, because the possessor of the property had actual knowledge of the presence of gas escaping into the property and, furthermore, on the morning of the accident, its agents allowed workmen to use an alcohol torch with an open flame in the building, thereby precipitating the explosion which injured Stacy. An exposed radiator pipe cannot be placed in the same category with explosive, escaping gas. Nor do we think that the facts in Gray v. Golden, 301 Ky. 477, 192 S.W.2d 371, fit the facts of the case at bar. Many other decisions are cited by appellee, involving the attractive nuisance doctrine, which do not apply here. Obviously each attractive nuisance case is governed by its own peculiar facts.