*193RESPONSE TO PETITION EOR REHEARING.
By tlie Court,
Beatty, J.In a former opinion we held, that the complaint in this case failed to state a cause of action, unless it should be construed to mean that defendant laid its track upon a highway. That it might be so construed, under the code, was conceded; but having been led to believe that the plaintiff relied upon other and inconsistent facts to sustain his action, we concluded that a reversal of the judgment would be of no advantage, and accordingly affirmed it. A rehearing was afterward granted upon a petition showing that the plaintiff expected to be able to prove a highway. On the argument counsel for appellant again urged the proposition made in the original brief, and contended that under the allegations of the complaint he could prove a state of facts that would render the defendant liable for a failure to repair the way in question, even though it was its own private way.
We are satisfied, however, that in this position the authorities do not sustain- him, and we refer again to the cases cited in our former opinion. In all the cases cited in opposition to our views as therein expressed, the principle upon which the defendants were held liable was that they had been guilty of some act of commission by which others were endangered. This is as true of that class of cases in which damages have been allowed for injuries to children caused by dangerous machines or instruments left in their way as it is of any of the other cases.
If a man leaves a machine which he knows to be dangerous where it is accessible to children, whose childish instincts will impel them to meddle with it he sets a dangerous trap for children and is justly held accountable for the injury that ensues. And so does a man set a dangerous trap who leaves car trucks standing near the crossing of a track without setting the brakes. But a man w'ho permits others to use his private way is not bound at his peril to keep it in repair. He will be liable for the consequences if he places a dangerous and hidden obstruction in the way, and *194on the same principle he may be liable if, with knowledge of the existence of some latent defect in the way, he fails to warn those who have been accustomed to use it, or who may beinduced to do so byits having the appearance orreputation of being a highway. In such case, however, these material facts must be pleaded. They cannot be proved under an allegation of neglect to repair. The liability does not grow out of the failure to repair, but arises from the fraudulent concealment indicating malice. The case of Knaresborough v. The Beecher Company, 3 Sawyer, C. C. R. 446, is not in conflict with this proposition, but, on the contrary, sustains it. In that case, knowledge of the defect on the part of the defendant was not essential to its liability, and that was all that was decided. All that was said, apart from the point decided, was to the effect that knowledge may be proved under a general allegation of negligence where it is merely an element of the negligence to be proved, but not where it is essential to defendant’s liability, as it is here, on the assumption that plaintiff was injured while using the defendant’s private way on business of his own.
There is no construction of this complaint which shows any cause of action against the defendant unless it is held to mean that the track was laid upon a highway. Allowing it that construction it does show a cause of action, and upon that .ground alone the judgment of the district court is reversed, with directions to overrule the demurrer, with leave to the defendant to answer.