I favor reversal on the ground of error in the charge pointed out in the opinion of Mr. Justice Htjbbs. But I dissent from the decision of the majority of the court in dismissing the complaint.
I am not prepared to concede that the rule of non-liability of a property owner to trespassers and licensees is strictly applicable to children of tender years.
It is often said that the doctrine of attractive nuisance does not prevail in this State. I think that is too broad a statement. Our courts have not followed the United States Supreme Court and the courts of many other jurisdictions in the turntable cases (Walsh v. Fitchburg R. R. Co., 145 N. Y. 301), but I do not believe we are so entirely opposed to the prevailing authority in this country and England that it may be said that in this State young children are held to the same strict rule as adult trespassers and licensees.
To state it plainly, the question seems to be, may the owner of property place and leave on his premises which are frequently visited by young children without his express invitation, but attracted there, a highly dangerous explosive or other dangerous or destructive agency, and if such children are injured thereby, rely on the rule of law that he owes no duty to trespassers or licensees except that of refraining from doing them a wanton or willful injury.
There seems to have been eliminated in this and some other jurisdictions liability to children attracted to private property by turntables, ponds or reservoirs of water either natural or artificially created, and objects like lumber piles, quarries or sand pits. But in other cases where the danger artificially created is concealed or cannot be appreciated by the ordinary observer, the rule is *589somewhat relaxed. To except it from the rule regarding trespassers and licensees, it is sometimes placed on the ground of an implied invitation,—that is, where a person has some dangerous object that is naturally attractive and has knowledge that children do come upon his premises attracted by the object, an invitation to do so is implied.
Another ground of liability is the obligation of a social duty that a person is bound to protect the young and heedless, who cannot in a legal sense be trespassers through lack of judgment and understanding, and to guard them against perils which may reasonably be foreseen, when they are attracted to property by some childish instinct. (Thomp. Neg. [2d ed.] §§ 1024, 1026, 1030.) It is sometimes difficult to reconcile by sound reasoning the cases where liability is held to exist, with those where it is held there is no liability.
The cases most common where the owner is held liable for his want of care for so-called “ destructive forces ” are the cases involving explosives and high tension electric wires.
In Travell v. Bannerman (71 App. Div. 439), where the plaintiff was injured by an explosive picked up on a vacant lot owned by the defendant, it was held that he might recover on the ground that the lump or cake of gunpowder and pieces of brass would fall within the description of a dangerous and enticing machine. That case was reversed in 174 New York, 47, because of failure of proof that the defendant deposited the explosive on the lot. The principle as stated in the Appellate Division was not controverted.
In Nelson v. McLennan (31 Wash. 208; 60 L. R. A. 793) it was held that the storing of dynamite in a partially covered box in a vacant lot, to which children are accustomed to resort to play, is negligence which will render the one guilty thereof liable for injuries to children by the explosion of one of the sticks which was taken from the box by children playing on the lot, and ignited by one of them in ignorance of its explosive character.
In Powers v. Harlow (53 Mich. 507, 515), where a dangerous explosive was stored in a temporary open shed near a way where tenants of the land were accustomed to pass, its structure and location being such as naturally to invite the entrance of children for play or for shelter from snow or rain, the owner was held liable to a tenant’s eight-year-old child who was on the premises by implied invitation and was injured by taking a percussion cap from an open box and exploding it without knowledge of its dangerous character.
In Folsom Morris Coal Mining Co. v. De Vork (61 Okla. 75; *590L. R. A. 1917A, 1290), where cans which had contained blasting powder were thrown on the ground near the powder house, and the cans still contained small quantities of powder, and children came upon the premises and got them and carried them away and ignited the powder, causing an explosion, the defendant was held liable for the injuries resulting. In its facts that case is very similar to the one at bar.
In Miller v. Chandler (168 Ky. 606) it is said: The rule is “ that where one stores dangerous explosives in a place upon his premises which he knows is accessible to and frequented by children, he does not exercise the ordinary care and reasonable precautions he is bound as a social duty to exercise to prevent accidents to children playing with or in the vicinity of such explosives.”
Mattson v. Minnesota & N. W. R. Co. (95 Minn. 477; 70 L. R. A. 503); Barnett v. Cliffside Mills (167 N. C. 576); Eckart v. Kiel (123 Minn. 114); Victor v. Smilanich (54 Colo. 479); Little v. McCord Co. (151 S. W. Rep. [Tex. Civ. App.] 835); Clark v. Du Pont Powder Co. (94 Kan. 268, 279) and Wallace v. Matthewson (143 Ga. 236) are other cases where the owner or occupant of property is held liable for damage caused by explosives. There are many other authorities. (See L. R. A. 1917A, 1295 et seq. note; 12 N. C. C. A. 871, note; 17 id. 414 et seq. note.)
The case of Perry v. Rochester Lime Co. (219 N. Y. 60) is not in principle opposed to these authorities. It simply held that under the facts of that particular case there could be no recovery, and as Mr. Justice Hubbs has pointed out, did not lay down any general rule of non-liability in such cases.
In the electric light cases where the injury occurs by reason of a harmless looking but deadly wire, the doctrine of implied invitation or license is extended to cover liability in the case of children playing in the vicinity, and the rule of non-liability to trespassers or licensees is not applicable. (Wittleder v. Citizens’ Electric Ill. Co., 47 App. Div. 410; Robertson v. Rockland L. & P. Co., 187 id. 720; Meehan v. Adirondack Power Corp., 88 Misc. Rep. 235; Temple v. McComb City E. Light & Power Co., 89 Miss. 1; 42 So. Rep. 874; Consolidated Electric Light & Power Co. v. Healey, 65 Kan. 798; Daltry v. Media Electric Light, etc., Co., 208 Penn. St. 403.)
There are other cases representing concealed destructive forces where the rule of liability has been applied.
In Union Pacific R. Co. v. McDonald (152 U. S. 262), where a railroad company operating a coal mine deposited slack in an open lot between the mine and its station, in such quantities that the slack took fire and was in a permanent state of combustion, a lad *591twelve years old was running and fell on and into the slack and was badly burned; and it was held that the company was guilty of negligence.
In United Zinc & Chemical Co. v. Britt (264 Fed. Rep. 785), the defendant maintained a pool of water which was attractive to boyish instincts and impulses as a place to go in bathing. The public crossed the premises at will so that they had made a footpath leading by the pool. Boys who went in bathing were killed by poisonous chemicals with which the water was impregnated. It was held that the owner’s liability was properly submitted to the jury.
In Peirce v. Lyden (157 Fed. Rep. 552) the facts are similar to those in the instant case. There the defendant maintained a shed in a railroad yard of about two acres near a schoolhouse in a city, in which he kept open barrels of oil. During the day time the shed was left unlocked and for several months children in the vicinity who played in the yard had been in the habit of stealing oil from the barrels in old cans and making fires in the yard, which facts were known to the defendant’s watchman. On one such occasion the plaintiff, an infant, was burned and injured. It was held that the defendant was chargeable with notice of such practice of the children from its long continuance and the knowledge of his watchman, and the question of his negligence in keeping the place in such condition, in view of the danger of their injury therefrom, was for the jury. (See, also, Northern Pac. Ry. Co. v. Curtz, 196 Fed. Rep. 367.)
Gasoline is a volatile liquid highly explosive and highly combustible. That it is so generally recognized accounts for section 302 of the General Business Law, which regulates the kind of buildings in which it may be stored to prevent its spreading where it may explode or burst into flame. It is when stored near a dwelling house regarded as a private nuisance because of its combustible and explosive character. (Whittemore v. Baxter Laundry Co., 181 Mich. 564; 148 N. W. Rep. 437; 52 L. R. A. [N. S.] 930.)
In this case there was a lot crossed by a footpath in common use near the place where this explosive and highly combustible fluid, harmless in appearance, was kept. Young children were attracted' there and resorted to the premises taking away the gasoline to the knowledge of the defendant and starting fires with it. No effort was made to prevent their doing themselves harm with this dangerous agency thus left exposed. I think in this case there are principles of liability generally recognized.
In my opinion questions of fact were presented as to whether the children were on the premises by implied invitation, and *592defendant failed in the exercise of its social duty and the ordinary offices of humanity reasonably to anticipate the injury likely to occur and to take reasonable precaution to guard against such injury; and whether or not the chain of causation was broken by an efficient factor relieving defendant of liability. (Mathis v. Granger Brick & Tile Co., 85 Wash. 634; Vallency v. Rigillo, 91 N. J. L. 307; 102 Atl. Rep. 348.)
I favor the granting of a new trial.
Judgment and order reversed and complaint dismissed upon questions of law only, with costs.