(dissenting).
I do not subscribe to the majority holding that the owners could not reasonably have foreseen that Bruss and his group would use the ‘suspension footbridge to enter the premises for the tour and that plaintiffs have failed to carry the burden of proving that Bruss had previously obtained the consent of the guide, Estelle Munson, to bring his group to The Cottage by way of this bridge.
Examination of the statements of Bruss and Estelle Munson convinces me that the testimony of the former clearly preponderates over the partial denial of the latter that the crossing of the bridge would be permitted under the direction of the tour guides. Indeed, both the district judge and the Court of Appeal experienced no difficulty in resolving that plaintiffs had *881established that it was foreseeable by the owners of The Cottage that the school group would use the suspension footbridge. The facts on this issue, as determined by the Court of Appeal (with which determination I fully agree) are as follows:
“The record contains conflicting evidence regarding visibility of the footbridge from the point where the busses stopped on the road and whether a path led from that point to the bridge. Bruss testified the bridge was clearly visible from that point and that a well defined path led from the road to the swinging bridge. He was corroborated to some extent by defendants’ manager, Robert Wheeler, who testified a path the width of a pickup truck existed having been previously cleared to perform work in the area which necessitated getting a small truck to the footbridge. Mrs. Wheeler and Mrs. Munson, however, testified the footbridge was not visible from the road (except from the automobile bridge) because of the presence of trees, vegetation and brush. They denied a path ran from the road to the footbridge. Photographs taken shortly following the accident support the conclusion there was faint evidence of a path from the road to the bridge in question.
“We believe, however, the issue of foreseeability of use in the instant case does not depend upon visibility of the bridge from the road or the presence of a path but upon the events and circumstances which transpired when Bruss made arrangements for the tour. As previously shown, Bruss testified he asked and received permission to use the footbridge. Although Mrs. Mun-son denied giving such permission, we are inclined to accept Bruss’s version of the conversation, especially in view of his testimony that after talking with Mrs. Munson, he personally inspected the bridge before leaving the premises, ascertained its condition to be excellent and decided to take the children across to make the tour more attractive. We believe the conclusion inescapable defendants’ said employee well knew Bruss would use the bridge and take his party across. If there were any limitation as to its use, she should have so advised him at that time. Notwithstanding the record discloses the bridge was not ordinarily included in the tour and at the time of the accident, defendants’ manager, Wheeler, was awaiting their arrival at the house unaware they were on the premises and had started crossing the footbridge, under the circumstances shown, defendant is charged with knowledge this particular group of tourists intended to use the bridge and would do so unless prohibited, re*883strained or forbidden to enter thereon. Moreover,' there were no signs restricting. invitees to the roadway and prohibiting walking through.the woods on either side. In addition1,' an .’invitee reaching the footbridge .’.was not forbidden to’ cross but impliedly invited to do so with caution by .the presence of the sign.‘Enter on bridge at own risk.’ ”
See 174 So.2d at pages 874 and 875.
It is almost inconceivable to me that Brass, the teacher who had made advance arrangements for the visitation by the eighth-grade pupils to this anti-bellum home, would have planned and directed the approach and entrance to the premises by his party of 60 persons via 'the suspension footbridge had he not had the specific permission' of the guide, Estelle Munson,, with whom he had made contact on his prior visit. And, of course, since Estelle Munson represented the owners of The Cottage, they are bound by -her" act made within the apparent scope of her authority.
That the owners of The Cottage were guilty of negligence in failing to provide reasonably safe premises for their paying patrons, I have not the slightest doubt. It just will not do, in my opinion, for the defense to say that the footbridge, which, in itself, must have been one of the attractive features of the premises, was soundly constructed and thereby escape liability for its collapse. For the civil engineer,' Dr. Capozzoli, testifying for the defense that the cause of the collapse of the bridge wás due to overloading, expressed the opinion that any structure like a footbridge, which is intended for use by “humans”, should indicate the limits of its bearing capacity. Accordingly, since the owners-could and should have foreseen that the bridge might be used by large groups of patrons, it was their duty to protect such patrons from harm — either by disallowing the use of the bridge when the patrons were unattended by a guide, or by posting warnings on the bridge indicating the load limit capacity of the structure.
To deduce, as the Court of Appeal did, that the posting of signs declaring the maximum capacity of the bridge to be 4¿600 pounds would not have avoided the accident in this case, is dealing in pure speculation. At any rate, such a sign would have been an effective legal warning which may have warranted the dismissal of plaintiff’s suit under the doctrine of assumption of risk.
The Court of Appeal, I think, clearly erred in holding assumption of -risk applicable here as it is unrealistic to say that plaintiff had any reason to suppose— unless advised by the owners — that the load capacity of the bridge, over which 43 children had already crossed or were crossing, was incapable of supporting her added individual weight. What the Court *885of Appeal was. really saying was that plaintiff was contributorily negligent in traversing the bridge under the visible circumstances. But I have difficulty in following this ruling as it cannot be fairly said that Mrs. Kennedy should have known that the bridge was overloaded.
The sign “Enter on bridge at own risk” did not provide notice that the bridge was dangerous. Indeed, the owners assert and the courts have held that the structure was sound within certain load limits. Therefore, the sign posted can only be regarded as an invitation to the patrons to use the bridge coupled, however, - with the proviso that when they do so, it is at their own risk. This proviso is, of course, simply an attempt by the owners to stipulate against their own liability for negligence which, in view of the ■ relation of the parties, is contrary to public policy and unenforceable.
I respectfully dissent.