It seems to me indisputable that the dismissal of the complaint for not stating a cause of action was error. It is alleged in the complaint that the plaintiff and other workmen were working upon the premises of the American Linseed Oil Company; that for the use of the said workmen in their work there was a plank walk at a place along the water’s edge which was about 40 feet long and 2 feet wide; that the defendant was engaged in doing work in the construction of a grain elevator on the said premises; and in the doing thereof he dug an excavation about 5 feet square and 7 feet deep along said walk, and negligently left it unguarded, whereby the plaintiff fell into it while going along the said walk in the performance of his duties. I see no question of trespasser or licensee in the case. The defendant had nothing to give a license of. He was only there doing work on the premises of another where many men were employed, and made an excavation along a little established highway of the place, constructed and established for the use of the men and which they had to use in their work, and negligently omitted the .everyday precaution and duty of guarding it. There is no room to talk of the plaintiff as a trespasser or licensee. On the contrary, he was there as of right.
The judgment should be reversed.
Hooker and Bich, JJ., concurred; Jenks, J., read for affirmance, with whom Miller, J., concurred.