dissenting.
In my opinion the judgment below should be affirmed. The body of Edward George Naas, a two-year-old child, was found in the middle of Campbell alley under a mortar box belonging to the defendant in error. There is no evidence whatever of how this unfortunate condition was brought about. In the ab*10sence of proof, there can be no guessing by either the court or jury to supply missing evidence. Connelton v. Loeb, 22 C.C. (N.S.), 15; Ry. Co. v. Andrews, 58 O. S., 426; Ry. Co. v. March, 63 O. S., 236.
There is no question but that the mortar box which was found upon the child was the property of the defendant and that it had been left out in the alley by his employee, but no negligence on his part is shown by the record, nor is there any evidence to show that he violated any duty with respect to said child walking or playing upon said alley.
The opinion of the majority of the court is based upon the idea that the box was placed upon the sidewalk of the alley in an unstable condition and for that reason fell upon the child, or that it was pushed over by some one. Eh the latter case, the defendant clearly could not be held, unless it was so placed that as a natural consequence of its position defendant might reasonably apprehend that some one would push it over.
This finding by the majority of the court, however, in my mind is not supported by the evidence. The evidence shows that the box was five or six feet long, about thirty-nine inches in width and from eight to twelve inches in depth; that it was used for hauling mortar in a wagon from defendant’s stable to places where he might use it in his trade of plastering. James Malley, the only witness who testified as to the position of the box before the accident, and who was in the employ of the defendant, described its position as lying lengthwise on the narrow sidewalk of the alley and leaning against the stable, the lower part fitting into the curb of the alley, which the evidence shows was one or two inehes-higher than the brick pavement of the sidewalk. This eui’b is clearly shown in the photographs which are exhibits in the case. The defendant, George Wingenberg, and George Klug, who was the father of the child who found the body, both testify as to the position of the box after it had been taken off of the child and replaced at the side of the alley. James Malley testifies that this latter position was the same as the position in which he left it before the death of the child. Wingenberg and Klug both say that the box lay lengthwise with its bottom up, *11its lower edge resting inside against the curb of the narrow sidewalk and its upper edge resting against the stable.
Taking the dimensions of the sidewalk and of the box as given, a mathematical calculation will show that the box would practically reach a point between two and three feet above the level of the sidewalk upon the side of the-stable, and that the angle of the box made both with the sidewalk and with the side of the stable would be in the neighborhood of forty-five degrees, depending upon the exact width of the sidewalk and of the box. These dimensions vary in the testimony of different witnesses. Taking any given dimensions, having the hypothenuse and the base of the triangle known, it requires a simple mathematical calculation to determine the length of its third side — which would be the distance from the sidewalk up the side of the stable to the point at which the upper edge of the box rested. When this is determined, the angle at which the box lay can also.be found. Just what each of these dimensions may be is not material, but taking any testimony that is given by the witnesses, they fail to show any position of unstable equilibrium on the part of the box, but instead show, that the box was firmly placed, whichever witness is relied upon.
The only testimony that in any way supports the finding of the majority of the court that the box was in a state of unstable equilibrium is that of J. T. Scanlon, in the following words:
“Q. Show the jury how that box stood there on the sidewalk, use this pencil and show us. A. Well, it stood about that way (illustrating) about 85 degrees leaning against the wall, and the sidewalk was only about three and a half feet wide, so that there would not be room to pass outside of it at all.”
From the use of the words ‘ ‘ 85 degrees, ’ ’ the majority of the court have reached the conclusion that the box was almost perpendicular and nearly parallel with the side of the stable. It will be observed that it is not stated whether the 85 degrees is the angle with the level of the sidewalk or with the side of the building, but the rest of the sentence stating that the box was leaning against the wall (not upright, parallel to it) and *12that there would not be- room to pass outside of it at all, shows that the witness intended to convey the idea that the box practically covered the entire width of the sidewalk — for, as he states, the sidewalk was three and a half feet wide and the box only one foot deep. To rely entirely upon a statement that the box was at an angle of 85'degrees and put it nearly parallel with the stable wall, would leave about two feet of the sidewalk free, which would be inconsistent with the rest of the sentence. An examination of the testimony of this witness will show that he was not accurate in his statements, and in my opinion this statement does not conflict with that of the other witnesses that the box covered practically the entire sidewalk and was placed in a firm and stable position and not in a position of unstable equilibrium.
Such being my conclusion drawn from the record, as to the position of the box, it could not have fallen upon the child merely by its own weight, nor could the young child have pulled the box over upon itself, but the interposition of some other considerable force was necessary in order to bring the box into the position in the alley on top of the child. "What that force was is not disclosed by the record.
I can not agree that this record shows a case of res ipsa loquitur. It is not a case of a box moving or falling out of a building of defendant which would require an explanation from him, as the electric truck in Roth Packing Co. v. Williams, 20 C.C.(N.S.), 362, or the falling of the trolley pole in the case of Traction Co. v. Holzenkamp, 74 O. S., 386.
While it is admitted that the box was the property of the defendant, it was not at the time of the accident either on his premises or under his direct management and control, but had been left by his servant on the public street. This was a violation of the city ordinance, but was not the proximate cause of the injury to the plaintiff’s intestate. The purpose of the ordinance was to prevent the obstruction of the street, as stated in its own terms, "so as to prevent citizens from passing along such sidewalk.” The accident was not caused because of the fact that the box *13obstructed tbe street, but because through some unknown agency the box was thrown upon the child.
To my mind, this does not make a case of negligence per se under the rule laid down in- the recent case of Schell v. Dubois, referred to by the court in the majority opinion. It should be controlled rather by the case of Wilde, Jr., v. Ohio Knife Co., 18 N.P.(N.S.), 373, which was recently affirmed by this court without opinion.
This question of liability for injuries to a child arising from a nuisance is fully discussed and the authorities reviewed in the two cases of R. R. Co. v. Harvey and Swarts v. Akron W. W. Co., reported together in 77 O. S., 235, in which attention is called to Friedman v. Snare & Triest Co., 71 N. J. L., 605, where a child was injured while playing upon iron girders left piled upon the street.
The rejection of the ordinance by the court below, when offered in evidence, did not constitute prejudicial error for the reasons stated in the majority opinion that the Superior Court of Cincinnati takes judicial notice of general ordinances of the- same city, and for the further reason, as I think, that the violation of the ordinance in this case was not negligence per se.