(concurring). The brief for plaintiff and appellant is confined to discussion of certain alleged errors relating to the admission of testimony and to the charge of the court. The testimony objected to is substantive testimony offered by the defendant after plaintiff had rested as to the custom *441of others in moving houses along the street and the custom of the defendant’s own men. Error is also assigned upon a ruling refusing to strike out a single bit of evidence elicited on cross-examination from one of the witnesses for plaintiff. All of the rulings complained about are unimportant in view of the declaration of the plaintiff and the testimony offered in behalf of the plaintiff. The duty of the defendant “to provide a guard or protéction so as to prevent this plaintiff from going near or coming in contact with said rope, wire, chain or cable, or the said wheel or pulley, and that it was the duty of the said defendant to so guard the said rope, chain, wire or cable, and the said wheel or pulley so that this plaintiff would not be injured as hereinafter described,” is variously alleged in the declaration, but the proof that any such duty existed seems to me to be wholly lacking. It appears, it is true, that plaintiff, a two-year-old child, took hold of the wire cable running through a block and his hand was injured. It seems to be apparent that, if any person had in like manner taken hold of the wire cable when it was moving toward the block, he might have been injured. But it is not made to appear by allegations in the declaration or by plaintiff’s testimony that the defendant owed any duty to use any other or different apparatus than the one in use; that the apparatus was in any way strange or the manner of using it not the common and proper way. Although the case does not seem to be relied upon by counsel for the plaintiff, O’Leary v. Telephone Co., 146 Mich. 243 (109 N. W. 434), is the one which upon the facts comes nearest the case at bar of any decided by this court. In that case the justices were divided in their opinions, and in the opinions considerable reference is made to other decisions; the ¿majority opinion sustaining the proposition that defendant’s liability was a question for the jury is based entirely upon the fact that *442children were meddling with the apparatus to the knowledge of the defendant’s agents, a fact not present in the case at bar. See, also, Iamurri v. Gas Co., 148 Mich. 27 (111 N. W. 884). Therefore, whether the testimony introduced by the defendant showing the custom of other house movers or the custom of his own men was rightly or wrongly admitted is wholly immaterial; and, inasmuch as the trial judge might very properly have directed a verdict at the close of plaintiff’s case, there is no occasion to discuss the assignments of error based upon the charge. The jury returned a verdict for the defendant, and any other verdict should have been set aside by the court. The judgment ought to be affirmed.