dissenting. I can not concur in the opinion of the majority of the court, for the reason that the question as to whether or not the appliance was a dangerous instrument or an attractive nuisance was one which should have been first submitted to 'the jury.
Further, .the accident having occurred on a public street, where the child had a right to be, and where it might be expected that small children would exercise their childish instincts, I can not concur' in extending the doctrine of Railroad Co. v. Harvey, 77 Ohio St., 235, as applicable to private premises, to be determinative of this case. The Isaac Leisy Brewing Co. v. Kapl, an Infant, 22 C. C., N. S., 309, and Gibbs v. Village of Girard, 88 Ohio St., 34.