(dissenting). I am unable to agree with the result reached by the majority of the court in this case.
It may be conceded that the abutting owner, whose land abuts upon a public highway, if no other fact appears, owns to the middle of the street. But such ownership is, of course, subject to public user, and the public rights are, as I think, exclusive of any right of the abutting owner in the highway which is inconsistent with the public right. All parts of the street, from side to side and end to end, are for the public use in appropriate and proper methods, and not for permanent private use. A temporary use may, of course, often be made of the street, although it is not of a public nature, as for loading, unloading goods, and the like. Ell. Roads & Sts. 17, 18; People v. Cunningham, 1 Den. 524; 43 Am. Dec. 709, note; Callanan v. Gilman, 107 N. Y. 360 (Justice Earl); note to 1 Am. St. Rep. 840-844; North Manheim Township v. Arnold, 119 Pa. St. 380; 4 Am. St. Rep. 650, 653, note.
An abutting owner has no right to put upon the street, except for temporary purposes, any article, dangerous, or which may become dangerous, to an adult or child using the street, in any way that the person placing it there should reasonably anticipate such adult or child would use it. This includes, as I think, a child at play.
In the case before us the child who' was injured was but five years of age, and hence was not chargeable with contributory negligence. The defendant had stored, as I think, upon the street a lot of iron girders. They had been there for upwards of three weeks. -The injured child was resting upon the girders when one of them fell, and the injuries sued for were the result.
At the trial, Mr. Justice Dixon stated in his charge what T think is the true rule in the given conditions. He said:
*621“As I have said, if a person places his goods upon the street in a proper condition, and exercises reasonable care to see that they are kept in that or some other proper condition, he is not blamable. But if he has not exercised reasonable care, if he has not had some supervision over them and tjiey have got out of condition, and been out of condition sufficiently long that he would have been apprised of their improper condition if he had exercised reasonable care, then he is blamable. So you see it is not only a question of their condition at the moment of the accident, but of their condition for some time previous.”
Then, after quoting from the testimony, he proceeds as follows:
“You see, the inquiry now is whether the person chargeable with the supervision of those girders exercised reasonable care and supervision over them. If he did, and that condition which was dangerous occurred, say, ten minutes before the accident, that person would not be responsible; but if the dangerous condition extended back for several days or weeks before the accident, then the question comes to you, did the person in charge exercise reasonable care and supervision, and would he have discovered the dangerous condition with such care and supervision? The plaintiff claims that such care and supervision were not exercised. The plaintiff must make that out to your satisfaction, and, if she does so.by a preponderance of the evidence, she has made out another element of her case.”
This statement left it to the jury, as I read it, to determine whether or not the defendant, in leaving the girders upon the street for a long period of time (which he did, storing them there, in fact), had been negligent in the care of them while thus left, and whether that neglect had resulted in the injury to the child.
Unless it can be said that a child of tender years has no right upon the public highway for any other purpose than the mere passage and repassage thereon, and that such a child is a wrong-doer if he stop to rest upon girders left upon the highway, as in the case before us, then I am unable to see *622why it was not a question for the jury whether the-plaintiff was or was not entitled to recover.
An examination of the authorities, both in this country and in England, as it seems to me, clearly sustains the right of action in. the plaintiff in this case.
In order to sustain this action it has been found necessary to attempt to overthrow the case of Lynch v. Nurdin, decided by the Court of Queen’s Bench, in 1841, and cited in the majority opinion. This case has never been repudiated by any court in this state, nor do I think it has been even infer-en tially, by any court in England.
It is unnecessary to review the cases in England, which are in principle similar to Lynch v. Nurdin, further than has been done by Mr. Justice Pitney in his opinion in this case, but I am convinced that a careful review of the cases which he cites as sustaining the contention that Lynch v. Nurdin has been distinguished, if not overthrown by the English courts, will show no such result, but that Lynch v. Nurdin is still recognized by all the text-writers, and is not inconsistent with the decision in any of the cases cited from the English courts.
I think the true rule in this class of case is this, the line of liability lies in the affirmative or negative answer to this question: “Was the thing which did the injury, at the time it did it, rightfully or wrongfully upon the highway?” If rightfully, then, if there for a temporary purpose, no liability. But if there, stored for a time, and hence wrongfully there, then liability if injury result from a negligent act of the owner; and, in such case, any act resulting in injury, which the owner should have reasonably anticipated would happen, and which has happened, may constitute negligence. McDonald v. Snelling, 14 Allen 290, 295; Dixon v. Bell, 14 Mau. & Sel. 198; Wright v. M. & M. R. R. Co., 4 Allen 283.
For cases in point, decided in other states, the following references are made: Knuz’s Admrs. v. City of Troy, 104 N. Y. 344; Donohoe v. Vulcan Iron Works, 7 Mo. App. 447; Chicago v. Keefe, Admr., 114 Ill. 222; McGarry v. Loomis, *62363 N. Y. 108; District of Columbia v. Boswell, 6 App. Cas. 420; Gibson v. Huntington, 38 W. Va. 117; Straub v. City of St. Louis, 14 Am. Neg. Rep. 384.
If I were tin-willing to enforce the rule which I have stated, as between an adult and an abutting proprietor, storing articles upon the sidewalk or street, I should still feel clear, in the case of a non mi juris child, that the rule stated by the trial justice in this case was applicable.
Chief Justice Beasley in Danbeck v. New Jersey Traction Co., 28 Vroom 463, when he stated:
“Very few of the rules that regulate the conduct of a man with his fellow can be applied with the less show of reason to his intercourse with children. It is the legal duty of everyone dealing with a child to protect it against its own indiscretion.”
And in this opinion the distinguished Chief Justice quotes Lynch v. Nurdin with approval.
I think that an abutting owner, placing materials upon the public highway, in front of his premises, is bound to anticipate the 'possible use which a child may make of them, in its innocency, and in accordance with the instincts and impulses naturally incident to child life, and that a duty is cast upon such abutting owner to exercise reasonable care and caution with respect to the probable conduct of such a non sui juris person. Powers v. Harlow, 19 N. W. Rep. 257 (Chief Justice Cooley); Rackmel v. Clark, 54 Atl. Rep. 1027.
This rule is not in conflict with the rule declared in the turntable eases. Delaware, Lackawanna and Western Railroad Co. v. Reich, 32 Vroom 635. The conclusion in those cases, as I understand them, is expressly upon the ground that the turntables were upon private property, and that the plaintiff was a trespasser when injured.
I am unable to conceive how a child, resting upon the public highway, as the plaintiff was in this case, or oven if in play, can in any sense be deemed a trespasser. The child, T think, was where the defendant should have reasonably anticipated that she might come.
*624Judge Bogert requests me to say that he concurs in this dissent.
For affirmance — Fort, Bogert. 2.
For reversal — Ti-ie Chancellor, Chief Justice, Garrison, Garretson, Pitney, Swayze, Vredenburgh, Yroom, Green, Gray. 10.