OPINION OF COURT
The following is taken, verbatim, from the opinion.
ALLREAD, J.The defendant in error relies upon the case of Railway Co. v. Harvey, 77 OS. 235, which holds that a Railway Company is not liable for injury to a child of tender years who comes upon its premises without invitation and merely by sufferance.
This case is distinguished from the case of Harriman v. Railroad Company, 45 OS. 11, and must therefore be construed strictly.
In the instant case, the injury happened upon a public street, and it calls for a more liberal rule in favor of the child.
In the Harvey case, the child was a trespasser, or at most a mere licensee. In the instant case the child was lawfully upon the street, where it had a right to lie.
The case of Ziehm v. Vale, 98 OS. 306, holds that “the principle of non-liability, applied in the Harvey case, supra, does not apply where the static condition of the premises is made perilous by the active and negligent operation thereof by the owner.”
In the instant case the plaintiff is an infant of the age of eleven years, and the defendant *118used no care to prevent the children playing on and around the trench digger, or from, obtaining, from the gasoline tank, gasoline kept therein.- A watchman was employed and, with the boys, had placed the lanterns, and then had returned to the shanty some hundred or two hundred yards from the machine, leaving boys evidently playing with the machinery.
The watchman’s duty did not end with the placing of lanterns, duly lighted, around the machinery, but he might be chargeable with a duty to watch the machinery and guard same from use by the children.
We hold that the court erred in taking the case from the jury and deciding the case upon the statement of counsel.
(Ferneding, PJ., and Kunkle, J., concur.)