dissenting. No statutory duty appearing, the defendant (the owner) owed the plaintiff (a licensee) no duty as to the condition of the premises, save that he should not knowingly let him run upon a hidden peril or wilfully and wantonly cause him harm. Smith v. Jewell Cotton-Mill Co., 29 Ga. App. 461 (116 S. E. 17); Petree v. Davison-Paxon-Stokes Co., supra. The location of the shifting-rods which were in no way concealed from view, so long as they were stationary, did not amount to the setting of a mantrap or pitfall or other contrivance so dangerous in character as to imply a disregard of safety or willingness to inflict injury. Wilder v. Gardner, 39 Ga. App. 608 (147 S. E. 911); Todd v. Armour, 44 Ga. 609 (162 S. E. 394). Therefore I think that count 2 of the petition was properly stricken on general demurrer. As to count 1, I think the allegations show that the plaintiff was a licensee, and therefore, since his presence as a result of his license was at all times probable, some care should have been taken to anticipate his presence, and ordinary care and diligence should have been used to prevent injuring him after his presence reasonably should have been anticipated. Mandeville Mills v. Dale, and Petree v. Davison-Paxon-Stokes, supra.
“A licensee is a person who is neither a customer, nor a servant, nor a trespasser, and does not stand in any contractual relation with the owner of the premises and who is permitted expressly or impliedly to go thereon merely for his own interest, convenience, *730or gratification. The owner of such premises is liable to a licensee only for wilful or wanton injury.” Code, § 105-402. This section made its first appearance in the Code of 1933, and was codified from Petree v. Davison-Paxon-Stokes Co., supra. But in that case this court quoted approvingly from Mandeville Mills v. Dale, supra, as follows: “There is [owed to the licensee] a slightly higher duty on the part of the owner or proprietor of the premises [than is owed to a trespasser]. He must not wantonly and wilfully injure the licensee; and since his presence as a result of his license is at all times probable, some care must be taken to anticipate his presence, and ordinary care and diligence must be used to prevent injuring him after his presence is known or reasonably should be anticipated. The fundamental concept in this class of cases [licensee], as in that of trespassers, is of a liability only for wilful and wanton injury; but it is usually wilful or wanton not to exercise ordinary care to prevent injuring a person who is actually known to be, or reasonably is expected to be, within the range of a dangerous act being done.” “A mere naked license or permission to enter or pass over an estate will not create a duty or impose an obligation on the part of the owner, or one in possession, to provide against the danger of accident.” But where a petition in effect alleges that the owner put over a path, or over a space fifty feet wide (as large as a street), which space is in a town between the depot and a store building, part of which is occupied by the express office and is generally and almost constantly used by the public, two iron rods which are apparently stationary, and a child about eight years old walks over the space, which is generally and almost constantly used by the public, steps upon what apparently are, and what he thinks are, two harmless stationary rods, and as he does so, the owner, through a mechanical device or contrivance, jerks or shifts those rods about six inches, which movement throws the child down and breaks his leg, I think it is for a jury to say whether or not the defendants were operating a mantrap or at least a contrivance so dangerous as to imply a disregard or willingness to infiiet injury. In other words, the allegations in this count of the petition show a moving of the shifting-rods under such circumstances as to make it a jury question whether or not the defendant exercised proper care to anticipate the presence of the child of eight years, and whether (if this *731question should be answered adversely to the defendant), the defendant exercised ordinary care and diligence to prevent injuring the child. Rollestone v. Cassirer, supra.