(after stating the facts). The declaration is composed of three counts. The first two counts predicate liability on the part of the defendant by reason of the statute, 3 Comp. Laws, §§ 11527 and 11528. The third count sets out a common-law duty, the breach of that duty and consequent damage.
The caBe seems to have been tried at circuit upon the theory of a common-law liability only. In this court plaintiff does not urge defendant’s liability under the statute, and we are therefore not called upon to determine its applicability to an opening such as the one which caused the death of plaintiff’s intestate. That question if presented would be one by no means free from doubt.
*302Was there testimony introduced by plaintiff tending to establish a liability at common law ?
The record contains abundant evidence tending to show that the hole into which the boy fell had existed for several years, and that it was unprotected. It is, we think, clear that no responsible officer of the defendant company had actual knowledge of the dangerous opening. The superintendent of the defendant company, however, testified that he had known of the existence of the trench leading from the hole down the slope for. some 11 or 12 years. He further testified that he learned of the shaft the morning after the accident, and that he then saw a piece of timber which looked as if it had been recently broken; his inference being that this timber had constituted a portion of a covering for the shaft, and that it had rotted away and fallen into the shaft. After a careful consideration of all the testimony offered on behalf of the plaintiff, we find ourselves unable to agree with the conclusion of the learned circuit judge, who held that:
‘ ‘ In my judgment there has been an entire failure on the part of the plaintiff to establish any negligence in this defendant company, which was the proximate cause of the death of the child.”
We think the question of the defendant’s negligence should have been submitted to the jury. If the shaft had been permitted by the defendant to remain open and unguarded for a number of years, even without actual knowledge on its part, that fact would certainly afford some evidence that the defendant had not exercised reasonable care in the premises, and particularly would this be true if the existence of the dangerous opening was known to those living in the vicinity.
It is urged by the defendant in this court (though the point was not made below) that in any event the verdict was properly directed because the boy was, at the time he met his death, a trespasser, or at best a mere licensee, to whom the defendant owed no duty. Though not properly *303before us for determination upon this record, as the case must be tried again, we deem it proper to discuss this phase of the question. The boy’s father was a lessee, or, at any rate, an occupant by permission, of one of defendant’s houses in the vicinity of the opening. No fences of any kind marked the boundaries of that portion of defendant’s land which plaintiff and her family might traverse. The entire vicinity was an open common used by the employés of defendant (among whom was the father of deceased) as a pasture for their cows. It was commonly traversed by the boys in their search for wood, and this fact was known to the defendant’s superintendent, and no serious objection seems to have been interposed. We are of opinion that such a license as was possessed by the father imposed upon the defendant the duty to warn him, and those members of his family coming upon the premises with him at its invitation, of such existing dangers as were known to it, or which should have been discovered by it in the exercise of reasonable care. See Powers v. Harlow, 53 Mich. 507 (19 N. W. 257, 51 Am. Rep. 154), and cases there cited.
The judgment is reversed, and a new trial ordered.
Moore, C. J., and Steers, MoAlvay, Blair, Stone, and Ostrander, JJ., concurred. Bird, J., did not sit.