dissenting:
The evidence does not show when or how the deceased met his death or the circumstances attending it. He was found hanging by his right arm, which was caught between the wheel and the framework. When or how he got there is unknown. He may have climbed upon the framework when the machinery was not in motion, have fallen, been caught and held fast, and, being unable to free himself, have perished from exposure. The fact that there was ho blood upon the wheel or sprockets, or elsewhere, indicates that he could not have been killed by the machinery. This coal conveyor was situated in the middle of a block, the whole west side of which was occupied by a car barn and the south one hundred and fifty feet, at the east side, by a power house,—a brick building forty feet high. The space between these buildings, except a narrow passageway along the east side of the car barn and fifteen feet of the south side of the block, was occupied by a coal-bin, which began fifteen feet north of the south boundary of the lot and extended north about eighty feet along the west side of the power house, which extended a considerable distance north of the coal-bin. The passageway next to the car barn was not a public alley, and there is no evidence of any use made of it by anyone. The framework to which the wheels were attached was in the angle between' the power house and the coal-bin, just outside the north end of the coal-bin and at least one hundred feet from the street north of it. It was enclosed on three sides by the power house, coal-bin and car barn, except for the narrow passage. It was forty or fifty feet from the well, which was north of the power house and east of its west side and which furnished water to the power house. The only negligence claimed' to have been shown is the maintaining of this frame, with the wheels and chains used to convey the coal in this situation.
The appellants were under no obligation to keep their premises safe for the benefit of persons coming upon them merely for their own pleasure or purposes. As • to such persons it was not negligence to maintain and operate the coal conveyor in the manner in which it is shown it was maintained and operated in this case. The majority opinion bases the liability of appellants upon the principle announced in what are known as the “turn-table cases” and followed in the cases cited in that opinion. The principle is, that the owner of premises adjacent to a public street or place, having thereon, near such public street or place, dang-erous machinery or other dangerous objects of a character to attract children too young to be capable of exercising ordinary care, and knowing that such children will probably be attracted by it, must use ordinary care to protect them from injury. The principle is not applicable here. The coal conveyor was not near the street or in a situation where it was likely to attract attention. It was not of a character to attract children, and the deceased was not too young to be capable of exercising ordinary care. In the cases where a liability has been found to exist because of the existence of • unguarded machinery, the machinery has been of a character to attract children by reason of their love of motion by other means than their own locomotion, as turn-tables or elevators. There was nothing of that character about this coal conveyor. The youngest child could not regard it as adapted for riding upon. The deceased was ten years old. The evidence shows that he was a bright, active, intelligent boy. He went to school and on Saturday used to work, going out on a wagon delivering laundry. There is no evidence that he was not of sufficient mental capacity to see and avoid danger, but the evidence was all the other way. As to such a boy the principle of the turn-table cases does not apply. In our judgment there was no evidence fairly tending to prove that the deceased came to his death through the negligence of the appellants.
The following instruction was requested by appellants and refused:
9. “The court instructs the jury that the defendants are not liable in this case, and you cannot find a verdict of guilty against the defendants unless you find, from a preponderance of evidence, first, that the chain and sprocket wheels in question were dangerous; second, that the defendants knew the dangerous character of said wheels and chains, or by the exercise of ordinary care would have known-thereof, before the second of March, 1904; third, that the defendants should have anticipated, prior to March 2, 1904, that plaintiffs’ intestate, or other children, would become caught in or injured or killed in and by means of said chain and sprocket wheel. If either one of the above propositions is not established by a preponderance of the evidence your verdict must be not guilty.”
This instruction should have been given. The facts mentioned in it as necessary to be proved were essential to recovery. The jury should have been so informed, and we do not think the error was cured by the instructions given.