Appeal from a judgment of the Court of Claims which dismissed a claim for damages alleged to have been suffered through the death of claimant’s intestate, a young woman twenty-two years of age, who came to her death on April 22, 1933, in the Enfield Glen State Park by falling from the “ look-out ” down a perpendicular wall of rock to the floor of the gorge eighty feet below. The negligence alleged is failure to erect a proper barrier around the look-out, or a handrail along the stairs leading thereto, to remove shale, leaves and branches from the stairs, or to warn of the danger.
All persons are invited to enter the park to enjoy its attractions and scenery. It is a strip of land about three miles long, lying on each side of a deep gorge cut by the waters of a creek. A path has been constructed along the side of the gorge. Prom this main path, nine stairs cut in the rock lead down to the “ look-out ” from which a view of the falls can be obtained. The floor of the look-out is seven feet one and a half inches below the level of the main path (this dimension is the sum of the nine stair risers as found) and horizontally seven feet six inches away from it (the sum of the tread widths as found) and on the very edge of the chasm. Prom the floor of the look-out to the top of the stairs the diagonal (the hypotenuse of the triangle) is about ten feet in length. The steps were cut into the rock and the thickness of the stratum determined the height of each riser. The treads vary from eight to twenty inches in width. The riser from the level of the look-out to the tread of the first stair is nineteen inches, the tread of that stair is ten and a half inches wide. The look-out is from twenty-eight to thirty inches wide. On the gorge side of the look-out there is a little wall, fifteen to eighteen inches in height and ten inches wide. The corut has found that on the day of the accident the stairs were of uneven tread, rough and covered with shale which had dropped down from the bank above, and with leaves and branches from the surrounding forest trees.
One of intestate’s companions says that a brief interval before the accident he had suggested a descent to the look-out, to which she had demurred. That he had passed the path before he learned that she was descending. He describes the incidents that led up to her fall. “ She was standing at the top of the steps and she *250started down the steps. * * * Started to walk down, and then she kept going faster all the time; she was going quite rapidly at the bottom. * * * I couldn’t say exactly, but she was up on this little wall before I got down the steps. * * * She started down slowly. * * * She was going quite rapidly, at the bottom of the steps and she seemed to step up on the wall and then tried to stop. * * * I would say it was a continuous motion down the steps and over the wall; it was a continuous motion down the steps and over the wall, with the hesitation of a second or a fraction of a second at the wall. * * * While she was on top of the wall, she kind of half turned around and flung either one arm or both arms back, tried to get her balance, and I was coming down the steps at the time, and I tried to grab her hand; one hand seemed very close to me, and I didn’t quite reach it, and then I stopped, myself. I thought I was going over, myself.”
The majority opinion quotes the text of section 340 of the Restatement of the Law of Torts to sustain the conclusion reached. That rule applies as indicated in comment “ a ” printed therewith. “ The rule stated in this Section does not apply to all persons who may lawfully enter or remain upon land but only to licensees who, * * * derive their privilege to enter or remain upon the land solely from the consent of the possessor thereof.” This long has been the rule in this State as to persons whose right to go upon land rests solely upon consent. (Sturger v. Van Sicklen, 132 N. Y. 499; Fox v. Warner-Quinlan Asphalt Co., 204 id. 240; Downes v. Elmira Bridge Co., 179 id. 136; Cusick v. Adams, 115 id. 55; Larmore v. Crown Point Iron Co., 101 id. 393.)
Enfield Park was given to the State and accepted. (Laws of 1920, chap. 343.)* The conditions of the gift and of the acceptance are recited in the above statute. “ Enfield Falls Reservation shall forever be reserved and maintained by the State for the use and enjoyment of the public. No fee shall be charged for entrance to or passage into or through any part thereof. It shall be the duty of the Board to preserve such reservation in its natural condition so far as may be consistent with its use and safety and to improve it in such a manner as not to lessen its natural scenic beauty.” The obligation of the State as to all its parks is substantially the same. (Conservation Law, § 718.) The State is liable if its officers and employees fail to construct such improvements as are made with reasonable regard for safety. (Court of Claims Act, § 12-a.) The liability of the State to bare licensees was considered in Splittorf v. State of New York (108 N. Y. 205). In that case a person was drowned in the canal when he sought to cross a swing bridge which *251had been left out of position during the night. The opinion (p. 215) states: “ The State had simply built a tow-path and bridge upon its own land for the use of persons navigating its canals. * * * No enticement or allurement to people generally to pass over the bridge was held out, except such as any bridge upon private lands holds out, and no one had a right to suppose from the mere existence of a tow-path bridge, that the State undertook the duty of keeping it in place at all times for the use of the general public.”
The obligation of the State as to Enfield Park was that of a trustee for the benefit of the public with the duty to make the improvements therein in a manner reasonably consistent with the safety of visitors. The State was liable for bodily harm caused to visitors if the artificial condition was not made reasonably safe and if a warning was not given of the dangerous condition and of the risk involved. (Restatement of the Law of Torts, § 342.) The Court of Appeals (272 N. Y. 420) and this court (245 App. Div. 401) have applied this rule in Kittle v. State of New York. There the liability was predicated upon the failure to warn or to erect a barrier. Decedent fell from a walk which she had reached by climbing thirty-five feet down a perpendicular ladder placed in a hole or fissure between ledges of rock to “ a steep, rough and rocky slope ” which led to the unguarded walk. In the Kittle case the danger was more obvious than in this case. There the visitor saw a ladder by which descent could be made into a hole or fissure. This gave more warning of the risk of the venture than here where the steps, the look-out, the barrier at the edge all indicated preparation for visitors with nothing to warn of a lack of reasonable safeguards, like a handrail or a barrier of reasonable height.
In determining whether the State was at fault in the construction of the steps, look-out and barrier, consideration should be given to the -uneven and Uttered condition of the steps, the abrupt descent of seven and one-half feet while traveling ten (a seventy-five per cent grade), the height of the riser from the floor of the ledge to the first tread (nineteen inches), the narrow Unfits of the ledge (two and one-half feet or less), with a barrier only fifteen to eighteen inches high, its top below the level of the last stair in the descent, which furnished Uttle or no protection beyond marking the outUne of the ledge.
The State was required to exercise reasonable care and, in determining the care which would be reasonable, consideration was to be given as to the imminence of the danger and the fatal results to be apprehended from a fall. Barriers are required to protect those traveling within the space prepared and offered for that purpose against danger in such close proximity thereto as to make *252traveling perilous. (Ferro v. Sinsheimer Estate, Inc., 256 N. Y. 398; Haefeli v. Woodrich Engineering Co., 255 id. 442; Flansburg v. Town of Elbridge, 205 id. 423; Nicholson v. Town of Stillwater, 208 id. 203.)
At the entrance to the park and half a mile from the look-out a sign had been erected admonishing: “ Proceed with care. You pass through this park at your own risk.” The concluding sentence is not a truthful description of the right of a visitor or the liability of the State. The sign did not change the obligation of the State or relieve it from the duty to warn at a place of unusual danger or to. erect barriers and handrails where a reasonable regard for the safety of a visitor required.
The State constructed the steps with the expectation that they would be used by the public and thereby extended an invitation to go to the look-out. This gave rise to an obligation to make the way reasonably safe. The necessity for a barrier at the edge of the look-out had been recognized, but the wall not higher than a person’s knee was inadequate. Decedent assumed such risks as remained after the State had exercised reasonable care for her safety. I do not subscribe to the theory expressed in the prevailing opinion that claimant’s intestate went through this park at her own risk, and assumed all dangers, except those incident to an intentional injury.
There is little, if any, dispute as to the facts proven. This dissent involves only a question of law. The majority find from the undisputed facts that claimant’s intestate was a bare licensee. I believe that she was an invitee and that the State was required to exercise reasonable care for her safety. That there was failure in this regard, and that she did not assume the risk which arose from the failure, and thus that the State did not establish contributory negligence. (Decedent Estate Law, § 131.)
I favor a reversal.
Heffernan, J., concurs.
Judgment affirmed.
Repealed by Laws of 1924, chap. 88. See Conservation Law, § 718.— [Rep.