Lonibeth Oster, by Her Guardian Ad Litem, Maisie J. Oster v. Union Pacific Railroad Company

The complaint in this diversity case was projected on the theory of attractive nuisance. The alleged offending structure was an ore loading platform of the defendant-appellee at Melrose in Silver Bow County, Montana. The court granted a motion to dismiss the first complaint. Plaintiff tendered a second complaint but, under the procedure of a local rule, leave to file that complaint was denied. Promptly after the rejection of the filing of the amended complaint, judgment was-entered in favor of defendant.

We think, in this day of notice pleading, that the complaints (at least the second one) were just sufficient to' withstand a motion to dismiss. Some how in the ruling there seems to be a trace of judicial knowledge of the nature of ore ramps in the mining country of Montana which has apparently been considered. But the trial court did recognize that an ore ramp could be an attractive nuisance.

At least, we believe, the plaintiff-appellant was entitled to show the court what the ramp was and relate how the injury occurred. Counsel for plaintiff-appellant in a spirit of helpfulness have appended to their brief several pictures of the ramp. We just cannot consider the pictures, so…