dissenting:
My conviction that this judgment is not sustained by sufficient evidence is so clear and firm, that, notwithstanding the high estimation in which I hold the opinion of my associates and the learned judge before whom this case was tried, and the consideration I am bound'by rules of law and am disposed by my high estimate of their value to yield to the views and conclusions of juries as reflected in their verdicts, I deem it my duty to respectfully express my dissent from the conclusions of a majority of this court.
In the main I agree with my associates as to the rules of law governing cases of this character, and as to their application to the case at bar; but upon one vital question I differ irom them, and I will briefly state the point of difference and the. grounds of my opinion. I believe that the only theory upon which the plaintiff had a right to recover, if the necessary lacts had been established for its support, was that involved in the charge of the trial judge in submitting this case to the jury, viz: that the plaintiff had been invited by the defendant to go upon this walk where he was hurt; and, as there was no evidence of an express invitation, the court properly submitted to the jury the single question whether there was an implied invitation. The verdict of the jury necessarily involves an affirmative answer to this question. I am of the opinion that the verdict, in this respect, is not sustained by sufficient evidence and that the motion for a new trial containing that ground should have been granted, and, consequently, that this judgment should be reversed on the ground that the court erred in overruling said motion.
As stated by my associate in announcing the opinion of a majority of this court, beside the plaintiff there was but one child under the school age in these eleven suites of apartments. The family of which plaintiff was a, member lived in apartments in a block adjoining that owned by defendant, and in which defendant had no interest and over which it had no control. True, the walk had been constructed continuously along both blocks and so as to be convenient of access and for use by the tenants of both blocks for the whole length thereof, and it was so used except as there were occasional and temporary interruptions by the placing óf the gate across the walk at the point where the blocks joined one upon the other.
Now it should be borne in mind that this structure was designed and was appropriate for a walk; and that, being fourteen feet above the ground and having four open stairways, it was not safe or suitable for *710a play-ground or nursery for children as young as the plaintiff. Without material alteration, including gates at the’ stairways, and constant guarding thereof to keep the same closed, this walk could not have been made a sate or suitable resort for such small children when unattended.
Marshall & Fraser and Waite & Snider, for plaintiff -in error. T. J. McDonnell, for defendant in error.It can hardly be claimed that it was the duty of defendant to so alter and g.uard his part of the walk as to make it sale for the plaintiff, a member of a family in another block, to go there unattended, unless defendant knew or ought to have known that plaintiff or other small children were then resorting to and using this part of the walk. That defendant had such knowledge there is absolutely no evidence. It is not shown that defendant had any knowledge of the presence of this or any other child under school age in either block, much less that they were permitted to go upon this walk unattended and assuming that defendant was bound to know that small children were in the blocks, it seems to me that defendant should not be held bound to know that such small children would or might be so grossly neglected by those upon whom their safe custody devolved, as to be permitted to go to this place, which, independently of missing pickets, and because of the open stairways, would be very dangerous to them; and that a duty to make,this walk safe as a nursery ought not to be imposed upon the defendant m the absence of actual knowledge that it was being thus used. Indeed the evidence that plaintiff,, or this othér small child was ever permitted to go upon this walk unattended is very meagre. It should be borne in mind that for the uses for which it was designed by the owners and to .which it was devoted by adults and school children, i. e., a walk, this structure was perfectly sate. The fact that children old enough to take care of themselves in a place of this kind were known to go there to walk, to run or to play, affords no just ground for an implication of an invitation to very young children to use the walk in the same way. If it would, then where can we stop or draw the line? Why would it not follow that the defendant must guard against possible accidents to babes old enough to creep upon this walk, on the ground that he is bound to assume that they will be permitted to creep at will upon this elevated walk with open stair-ways?
Belonging to the suite of rooms rented to and occupied by the father of plaintiff and his family in this adjoining block, there was an open porch contiguous thereto and to the part of the walk passing the same, to which plaintiff’s family had an exclusive right, and that plaintiff’s father or his landlord might have fitted with fence and gates so as to make a safe place out of doors for this child. The same was true of each shite. Had not defendant a right to assume that extremely young children would be cared for at home, 'in the absence of positive notice to the contrary?
There being, as I read the record, no evidence that plaintiff in error had knowledge that children of or near the age of plaintiff were accustomed to go upon this walk unattended by adults, and no evidence that this was a place alluring or enticing to such children, so that their going there should be anticipated because of its nátural attractiveness, and no evidence ot an invitation express or implied, to plaintiff or his parents or custodians authorizing the going of plaintiff to this place, I am fully persuaded that the judgment and verdict should not stand.,