DISSENTING OPINION
No. 22020. Decided March 26, 1951.
HURD, J.(Dissenting.)
As indicated by the majority'opinion, the court affirmed the judgment in this case because it holds that the trial court should, as a matter of law, have arrested the case from the jury and entered judgment for the defendant, and by reason thereof, errors of which complaint is made need not be considered.
The assignments of error are as follows:
“1. The court erred in refusing to charge on the ‘frequenter’ statute;
“2. The court erred in refusing to give plaintiff’s request to charge No. 1
“3. The court erred in its general charge to the jury.
*218“4. The court erred in giving an erroneous interrogatory to the jury;
“5. The court erred in further instructing the jury on the erroneous interrogatory;
“6. The court erred in communicating instructions to the jury relating to this interrogatory without notifying counsel for either side that he was going to do so;
“7. The court erred in refusing to grant a mistrial.”
The concluding paragraph of the majority opinion reads in part as follows:
“It is the conclusion of the majority of this court that the only duty owed the appellant by the proprietors of the parking business, was to not intentionally, wilfully, wantonly or through active negligence, create pitfalls or hidden dangers, or cause such conditions to arise. We find that this duty was not violated. * * *.”
Disagreeing with this conclusion I feel it my duty respectfully to dissent from the opinion and judgment herein rendered.
It should be understood that the parking area in question from which the plaintiff fell to an alley below, is located upon the roof of a building which extends from the south side of Vincent Avenue north to the south side of Superior Avenue. The absence of any rail along the eastern edge of this roof made an issue presented by the pleadings and the evidence as to whether or not the employer had used reasonable care to furnish a safe place of employment in accordance with §§871-13, 871-15 and 871-16 GC.
The majority opinion is confined to a discussion of the applicability of the above cited sections of the Code and holds in effect that the same are not applicable to the facts and circumstances of this case, and that the plaintiff is not, as a matter of law, entitled to the benefits of the frequenter statute.
In my opinion, the language employed by the legislature in the frequenter statute (Sec. 871-13 GC), which is quoted in the majority opinion, is so plain and unambiguous, and its meaning is so clear, that judicial interpretation is not necessary or required. The record clearly shows that the defendant is an “employer” and that the accident occurred in “a place of employment,” within the meaning of the statute. Now it cannot be said, as a matter of law, that the plaintiff under all the circumstances of the case was a trespasser, although a jury may so find as a matter of fact. The statute excludes only “trespassers” from its operation, in a place of employment.
*219It is my view that appellant was entitled to a charge on the “frequenter” statute, as requested and that it was prejudicial error to refuse the same.
In view of the holding of the majority of the court in the majority opinion, it would serve no useful purpose to discuss in detail the other assignments of error, although all the members of this court are of the opinion that some of these assignments of error have considerable merit, particularly Assignment of Error No. Six, namely, that the “court erred in communicating instructions to the jury, relating to an interrogatory, without notifying counsel for either side that he was going to do so.”
For the reasons stated therefore, it is my conclusion that the judgment should be reversed and the cause remanded for further proceedings according to law.