(dissenting).
I am forced to dissent from the conclusion of the majority that a submissible case was not made. I believe the evidence would support a finding by the jury:
1. that by plaintiff’s long use of the sidewalk as a place to clean lamps and defendant’s knowledge of and acquiescence in such custom the sidewalk had become and was an established place of work not only for cleaning lamps but also as a point from which plaintiff necessarily would move in the inspection of instantly passing trains;
2. that in moving to make the inspection plaintiff of necessity would make some use of the sidewalk;
3. that the ditch immediately adjacent to the sidewalk was inherently and patently dangerous to any employee using the sidewalk in the prosecution of duties similar to those of plaintiff;
4. that in years gone by a steel guardrail had been maintained at the point where plaintiff fell into the ditch and that it was reasonably feasible for defendant to have continued to maintain a similar device;
5. that, by reason of the premises, defendant was negligent in failing to furnish plaintiff with a reasonably safe place to worx; and
6. that defendant’s negligence directly contributed to plaintiff’s fall and resultant injuries.
I would remand the case for trial on the merits.