dissenting. The facts in this case are not disputed. The defendant water works company excavated a hole in Julia Street near St. Joseph Street in the City of Baton Rouge, about eight feet long, four and one-half feet wide and about three feet deep, and left it open and uncovered. The dirt dug out of the hole was piled around it, forming a barricade from sixteen inches to two feet in height and wooden benches called horses placed on each side up and down the street, from which red lanterns were hung at night. The hole was full of water. It was filled presumably very soon after it was dug by the water escaping and running from the main in which a leak had developed, and remained full the entire time it was . there. A stream of water ran from the hole into the nearby gutter, through an opening for that purpose left in the barrier. This drain prevented the *25water in the hole from rising to the top of the barricade, and kept it down even with the surface of the street. This hole was left in this condition for twelve or thirteen days.
Plaintiffs’ son, two and one half years old, got into it and was drowned.
The children in the neighborhood had discovered it some days previous to the accident, as some of them were seen playing there, but plaintiffs’ child was not permitted to play on the streets, not go on them unattended, and it was never seen at the hole until it was found in it, shortly after it had been drowned.
It is conceded in the opinion that a child two and one-half years old cannot be guilty of negligence, and that plaintiffs, its parents, were not guilty of contributing to its death by leaving him alone for ten or twenty-five minutes on the porch of their home, with a nickel in his hand with which to pay for an ice cream cone, which a vendor was in the habit of selling to children as he passed along the street. This holding that such an act was not negligence on the part of the parents is supported by Westerfield vs. Lewis Bros., 43 La. Ann. 63, 9 So. 52; Palermo vs. Orleans Ice Mfg. Co., 130 La. Ann. 833, 58 So. 589, 40 L. R. A. (N. S.) 671; Sundmaker vs. Y. & M. V. R. Co., 106 La. 111, 30 So. 285.
But the Court takes the position that the judgment appealed from is erroneous because the parents saw defendant’s employees digging the hole and were not apprehensive of danger from what they saw being done; but mainly, because the defendant water works company had, for t.he past seventeen years or so, been excavating holes in the streets and leaving them open and uncovered with a dirt barricade and a horse on each side from which red lanterns were hung at night, as the only protection, and during which time it was said that no accident had ever happened before. The Court concludes that the same thing had been done so long without accident, that therefore the drowning of plaintiffs’ son was not an occurrence which should be attributed to defendant’s negligence in leaving the hole uncovered, and in not foreseeing an accident of the kind to children and providing against it. That defendant was therefore not liable in damages on account of the occurrence in question.
I contend with respect, that the conclusion of the Court on that subject, is erroneous as a matter of law.
The barricade of dirt and the two horses amounted to nothing as a protection for children. It was easy for them to climb over the dirt barricade. The cases of N. O. & N. E. R. Co. vs. McEwen & Murray, Ltd., 49 La. Ann. 1184, 22 So. 675, 38 L. R. A. 134; Lopez vs. Sahuque, 114 La. 1004, 38 So. 810, and Loftus vs. Union Ferry Co., 84 N. Y. 455, 25 Cal. 533, 38 Am. Rep. 533, cited in support of the conclusion, were not based on similar situations. A hole of the kind involved in the present case, is, in my opinion a nuisance, and as to children two and one-half years old, dangerous per se. And the danger increased each day of the twelve or thirteen it was left open, in proportion as its presence became known to the children in the neighborhood. This hole could have easily been covered over and made safe. It was done the next day after plaintiffs’ son was drowned. It should not have been left unguarded and uncovered a single day.
I disagree with the Court that the defendant did not foresee the danger. The possibility of children too young to appreciate the danger of drowning, and too weak to extricate themselves in case they fell into it, was necessarily foreseen. No *26prudent or thinking ■ man could help being aware of it. Biegel vs. City of N. O., 143 La. 1078, 79 So. 867, cited by defendant, rests on a different principle. In that case a child fell into an open gutter which ran under a culvert. A heavy rain had fallen and filled the gutter with a strong current of water, which carried the child under the culvert, where it was drowned before it could be rescued. The theory of the plaintiff in that case, was that the city should have foreseen and provided against an occurrence of the kind by placing a grate at the end of the culvert. The Court held in effect that the occurrence was one which the city. could not be expected to have foreseen. In Lopez vs. Sahuque, 114 La. 1006, 38 So. 810, a mother saw her child playing in a cart with other children. She did not call her child to come away, because she did not see any danger there. A city ordinance existed against carts being left in the streets. The Court held that the cart was not dangerous per se. That it only became dangerous, because the other children had tilted up the body in their play, which, falling, struck plaintiff’s child on the head. That the circumstance of the danger was remote from the accident, and was not foreseen by the owner of the cart.
In this case the defendant water works company is charged with knowing that this hole which it excavated in the street and left open and uncovered was full of water, deep enough to ■ drown children, was in fact attractive to children and dangerous per se. The stream flowing out of it into the gutter was an additional attraction.
Dangerous holes excavated in streets and sidewalks, when left open and uncovered have always been classed as nuisances, dangerous per se.
Westerfield vs. Lewis Bros., 43 La. Ann. 63-64, 9 So. 52, is a case in which a machine, capable of doing great harm to children if set in motion, was left on a street near a residence unguarded. A boy five years old slipped out of the house and got on it, and got it in motion, and was thereby killed. The legal questions involved in the case were closely considered. Two of the Justices dissented from the majority finding on the facts, but not from the legal principles announced. One of the illustrations used in stating the principle applicable to dangerous things attractive to children, left unguarded, quoted from Wharton on Negligence, was as follows, p. 71 of 43 La. Ann. (9 So. 56):
“Supposing however, a well is left open or machinery exposed and • a child is thereby damaged. Again we say, notwithstanding the high authority to the contrary, that the negligence of the child’s parents has nothing to do with the issue. That issue is, was it negligence to leave the well or machinery exposed? And this issue must be determined by the. test whether such exposure is consistent with the mode of action of a prudent and skillful business man.”
In Cline vs. City R. Co., 43 La. Ann. 327, 9 So. 122, 26 Am. St. Rep. 187, the cause of action was a death resulting from a hole in a street, left uncovered and unguarded. The Court, referring to the liability of the defendant, said page, 334, 43 La. Ann. (9. So. 125):
“But even if the driver had seen the hole and had not avoided it, nothing shows that he knew of its dangerous character.”
In this case, plaintiffs did not examine the hole. They did not know it was full of water. It was to them an unknown danger to which their child was exposed.
Buechner vs. City, 112 La. 599, 36 So. 603, 66 L. R. A. 334, 104 Am. St. Rep. 455, was a damage suit on account of the drowning of a boy between eight and nine years old. The boy fell into a canal through a hole in a bridge. The Court referring to the cause of action, said:
“The defendant is charged with negligence in not keeping the bridge in a safe *27condition and especially in permitting a dangerous hole in one of the passageways to remain open so long.” And approvingly quoted from Beach on Negligence, as follows: “Even adults have the right to presume that a public passage-way is safe, and are not negligent for not looking for unlawful obstructions.”
In Rock vs. American Construction Co., 120 La. 831, 45 So. 741, 14 L. R. A. (N. S.) 653, the Court said:
“As a municipal corporation would itself be liable to a citizen for injury sustained by reason of its reducing a sidewalk to a dangerous condition, it is evident that the privilege granted by such a corporation to a public untility company, of making excavations for a sidewalk, cannot authorize such company to leave the excavations. so made unguarded, and to dispense with all precautions, whereby those who are rightfully 'using the sidewalk may be warned of their existence. Nor can the company in such case escape liability on the plea that an excavation made under the authority conferred on it and for its account and benefit, has been made by an independent contractor.”
Gueble vs. Town of Lafayette, 121 La. 909, 46 So. 917, is to the same effect. In Allen vs. Town of Minden, 127 La. 403, 53 So. 666, the syllabus reads in part:
“It is negligence for a town making repairs to leave a pit in a public street with no railing around it, nor any lights or danger signs to warn people using the street. The town in making repairs to its streets, must use due care not to endanger the life, limb or property of anyone. * * *
“A municipality making excavations in a public street is held to the same degree of care to prevent injury to any individual and the public has a right to believe that a municipality will not expose them to danger and that it will do everything to make their passage along public streets reasonably safe.”
In Palermo vs. New Orleans Ice Mfg. Co., 130 La. 833, 58 So. 589, cited in the opinion herein, the syllabus reads in part:
“Where a child four years old fell into a street gutter containing hot water, which had flowed from defendant’s plant, and was painfully burned, the defendant will be held liable in damages where the evidence shows that the water and steam attracted the curiosity of the children in the vicinity, and that the defendant’s watchman at the gutter had left his post before the accident happened to the child.”
The opinion in the present case, commenting on the case just cited, says that the defendant was aware of the danger, and had placed a watchman there to guard it, but that he had deserted his post. That in the present case, there is no evidence of that character. That the long period of time during which these excavations had been made and barricaded without the occurrence of a single mishap, indicates that the arrangements made by defendant in this instance, was sufficient, etc. The Court mistakingly overlooks the fact that the evidence in this case does not show that the excavations made by defendant in the past were left full of water deep enough to drown children, and from which a stream was flowing. The witnesses did not say whether they were full of water or not but if such had been the case and children lived in the neighborhood, instances would have occurred almost sure, just like that which happened to plaintiffs’ child. In Burk vs. Werlein, 143 La. 788, 79 So. 405, the first clause of the syllabus reads:
“An excavation in a public sidewalk is intrinsically dangerous and is a nuisance, and one who causes it to be made, owes an absolute duty to protect the public from injury that may result therefrom, and cannot escape liability for such injury by showing that the excavation was' made by a person, who, though engaged by him to do so, acted as an independent contractor.”
So, the fact that the defendant water works company has been excavating holes in the streets of the City of Baton Rouge for the period of time claimed, and barricading them in the way stated, and leav*28ing them uncovered for as long as the one in the present case was left open, without a single accident occurring, is not ground, in my opinion, for acquitting the defendant of negligence in this case, because the evidence does not show that the holes in the past were left full of water deep enough to drown children, and that a stream of water was running out of the hole into the gutter, some four or five feet away. And as the defendant excavated and left this hole in the condition' stated, it is legally charged with knowing what is known to everybody, that it would attract children, and that as to those too young to appreciate the danger of drowning and too weak to extricate themselves should they fall into it, it was a nuisance and dangerous per se. And to my mind defendant’s act was one of inexcusable negligence, and having caused plaintiffs damages in the way alleged, it is responsible to them accordingly.
The judgment appealed from, is, in my opinion, correct and should be affirmed.