dissenting. In its opinion, the majority 'states that: “Since it is ‘some evidence of negligence’ to turn animals into a field with defective fencing, it is also évidence of negligence to leave open a gate to the animals’ enclosure.” There is one major fault with that comparison — the record in the instant case is devoid of any evidence, direct or circumstantial, as to who was responsible for the gate to appellee’s enclosure being open.
■ Unless this court is prepared to infer that appellee was negligent as a matter of law solely by virtue of the fact that the gate was open, I find the syllabus in Gedra v. Dallmer Co. (1950), 153 Ohio St. 258, 91 N. E. 2d 256, to be controlling. Since the appellants have failed to show that the ponies escaped because of some breach, by appellee, of his duty of due care, I would affirm the judgment of the Court of Appeals.