(dissenting).
I dissent.
This is an appeal from a judgment entered on a jury verdict, We are therefore required to view the evidence in a light most favorable to sustain the judgment, and if there is any competent evidence in the record which would justify the jury verdict, we should affirm.1
The facts are not in dispute. It is only the conclusions to be drawn therefrom which give rise to the controversy.
Darren J. Pollick was a three-year-old boy with his father in defendant’s store. While the father was paying for merchandise purchased, Darren walked a short distance to a stair well around which was a banister almost 36 inches high. The city ordinances required a height of 36 inches, but plaintiff makes no claim of liability on the part of the defendant because of the shortage of height. He does, however, contend that the banister was not safe for minor business guests and invitees and this claim is urged because the banister had a mopboard around the base which was seven and one-half inches high.
The infant plaintiff climbed the mop-board and becoming overbalanced fell to the floor below.
I think it was a jury question as to whether the defendant should have foreseen, when it constructed and as it maintained the mopboard, that a child of tender years might climb the same and thus become overbalanced and fall.
The jury found negligence on the part of the defendant and I think it was within their province to do so. It ill behooves us to substitute our judgment for that of the triers of the fact, and I would affirm the judgment and award costs to the respondent.
. Burkhalter v. Grandeur Homes, 17 Utah 2d 278, 409 P.2d 614; Smith v. Gallegos, 16 Utah 2d 344, 400 P.2d 570.