(dissenting).
I respectfully dissent. I do so because of my view that, upon the evidence admitted, a jury could properly find that defendant Joseph M. Massa created, and allowed to remain, a dangerous trap upon premises which he knew were customarily used as a way of ingress to and egress from his own place of business.
In finding the appropriate and decisive rule of law for this case, it is not necessary to become enmeshed in the complications of the respective duties of *566landlord and tenant, inter sese or to the public, in maintaining leased premises in a state of reasonable repair. Neither need the fine distinctions between invitees, licensees and trespassers be discussed. Even if the injured four-year-old Negro youth was, as a matter of law, a trespasser upon the premises leased to the Whitehaven Saddle Club,1 defendant Massa cannot be exonerated for his conduct in first creating a situation which, to his knowledge, was dangerous to anyone traversing the premises and then in allowing the situation to remain without doing anything effective to eliminate it. I consider that Massa could no more be excused for his creation and continued toleration of a grave danger upon neighboring land which he knew was used as an access to his own premises, than he would be for creating such a dangerous trap upon a public thoroughfare or an established private way.
In testing the sufficiency of plaintiffs’ evidence to resist defendants’ motion for direction, the evidence and all inferences that can be legitimately drawn therefrom are to be viewed in the light most favorable to plaintiffs. Poe v. Atlantic Coast Line R. R. Co., 205 Tenn. 276, 284, 326 S.W.2d 461, 464 (1959). From the evidence received, a jury could come to the factual conclusions which I recite below.
Massa knew, or should have known, of the existence of a well-worn path across the Saddle Club premises and that this path was regularly used as a means of access to the Oak Lake Club.2 My brothers describe the Saddle Club property as “fenced pasture land.” All of us can remember the many fenced fields across which well-worn paths portrayed how ineffective fences were to boys, and others, who took short cuts to their daily destinations for work or play. Children used this path, and regularly played upon the Oak Lake Club premises, getting there by crossing the Saddle Club property. Observing the burning sawdust and manure, Massa undertook to have it spread over the Saddle Club premises. He knew that his plan of spreading the sawdust to extinguish the fire did not work and was aware that the smoldering continued notwithstanding the fire department’s effort to extinguish it. His employee spread the sawdust again after the fire department’s effort failed. Massa was aware, or should have been aware, that the sawdust continued as a hazard and was not known to be such by persons using the Saddle Club premises. The jury could find that he created a dangerous trap across a well-traveled path, did not take adequate steps to remove it, and took no steps to warn of the dangerous condition that he had created. As was said in a somewhat analogous case,
“The ultimate question is whether defendant can fairly be said to be responsible for the injuries complained of. * * * [I] f reasonable men could differ and draw reasonable inferences from the facts or find one set of facts when two are offered and from those found could conclude that defendant’s conduct was negligent, then the jury ought to be permitted to answer *567the ultimate question.” McGettigan v. Nat’l Bank of Washington, 115 U.S. App.D.C. 384, 320 F.2d 703, 705 (1963).
This is not a case of an owner or landlord being sued by a trespasser for his failure to maintain premises in reasonable repair. Nor is it a case, such as the Willcox 3 cases cited by the majority, in which a landlord is sued for failure to remedy a dangerous condition, not created by him, which originated when he was not in possession of the premises. Massa actively and knowingly created a situation which was known by him to have brought about a latent dangerous condition. Although there was no direct evidence on the point, it may be assumed that the burning pile of manure and sawdust was initiated by members or employees of the Saddle Club. It may also be assumed that the then duty of keeping the leasehold premises in repair and not creating danger thereon was that of the tenant and not that of the landlord, Massa. Hester, v. Hubbuch, 26 Tenn.App. 246, 170 S.W.2d 922 (1942). Massa, however, as a concerned owner voluntarily undertook what may at first have appeared to him to be a safe way of extinguishing the fire for the protection of both the leased land and the adjoining Oak Lake Club, owned and occupied by him. He directed his employee, Joseph Lee Webb, to spread the burning sawdust and manure. The employee .did so and repeated the operation after the fire department failed to put out the fire. I consider that the following quotation from Southern Bell Tel. & Tel. Co. v. Yates, 34 Tenn.App. 98, 232 S.W. 2d 796 (1950), is apposite here:
“As stated by the American Law Institute, although a servant has no duty to enter upon a transaction, if he does so and thereby creates a situation such that further action is required to protect others from harm, he has a duty to continue to act and his failure to do so may be conduct within the scope of his employment. Re-Statement of the Law of Agency, Sec. 232, Comment D.” 34 Tenn.App. at 107, 232 S.W. at 799. (Emphasis supplied.)
See also Sneed v. Henderson, 211 Tenn. 572, 585-586, 366 S.W.2d 758 (1963). The means employed by Massa to extinguish the fire having failed, he could not then abandon the project and expose the users of the Saddle Club premises to the danger he had created.
It is correct that there was no direct proof that Massa knew that plaintiff, his brother or his cousin were traversing the leased land on the day of the accident. The “mashed down” fence and well-worn path, however, are evidence that Massa knew, or should have known, that some person or persons were regularly traveling across the Saddle Club property. While its facts are not in precise point with the case at bar, the decision in Harrison v. Southern Ry. Co., 31 Tenn.App. 377, 215 S.W.2d 31 (1948), provides satisfactory precedent for the proposition that Massa owed a duty to trespassers to refrain from active negligence. There a coal company’s premises adjoined a switch track upon which the railroad delivered carloads of coal to the coal company. To aid in unloading, the coal company had dug a trench that had long been observable to the many persons who walked along the track to get to their work or other destinations. Without previous warning, the coal company, with the railroad’s permission, dug a trench on the other side of the track and left it unprotected. The plaintiff, walking along the track in the nighttime, fell into the new trench and sought to recover against both the railroad and coal company for his injuries, alleging active negligence. Neither defendant knew that the particular plaintiff was a user of the path. They insisted in their defenses that plaintiff was a mere licensee and the only duty owed him was to refrain from wilfully or maliciously injuring him. In affirm*568ing a verdict and judgment for plaintiff, the Tennessee Court of Appeals said:
“We think the rule may be stated that an owner or occupant who, after having acquiesced for a long period of time in the use by the public of a way across his premises, obstructs the way, excavates therein, or otherwise renders it defective, without providing guards or barriers properly to protect persons using the way or without giving warning of its changed condition, is liable to one who, in using the way without notice of its changed condition, is injured as a consequence of its defective condition.” * * * * * *
“[I]f a change should be made in the property by the digging of other pits near the path, or across the path, it would be the duty of the landowner, having knowledge of the habits of the licensees in passing over his land, in some way to warn them. He would have a right to change his land in such way as he might deem proper. The negligence would not consist in the act of such change, but in the failure to warn the licensees of the change of status.” 31 Tenn.App. at 385, 386, 215 S.W.2d at 35.
The majority distinguishes Harrison in that plaintiff therein was found to be a licensee while the District Court here found Don Chandler and his companions to be trespassers. Even if the majority is correct that the injured youth was a trespasser, Massa owed a duty to him under Tennessee law. In Bass & Co. v. Parker, 208 Tenn. 38, 343 S.W.2d 879 (1961), the rule limiting liability to a trespasser is given as follows:
“It is unnecessary to cite numerous cases for the rule in Tennessee and generally that a duty of ordinary care is owed to an invitee, whereas to licensees or trespassers the only duty of the owner or occupant of premises is not wilfully to injury [sic] him or lead him into a tray * * (Emphasis supplied.) 208 Tenn. at 44, 343 S.W.2d at 881.
The Supreme Court of Tennessee later defined the word “trap” in Walker v. Williams, 215 Tenn. 195, 384 S.W.2d 447 (1964), as follows:
“Ordinarily the word ‘trap’ as used with reference to liability therefor in tort designates a device or condition created with intent to injure, but, of course, we no longer follow such strict use of the word, and ‘trap’ as now used in this kind of lawsuit generally means any hind of a hidden dangerous condition and there need not be any intent to injure.” (Emphasis supplied.) 215 Tenn. at 203-204, 384 S. W.2d at 451.
What was created here — a large, crusted-over patch of smoldering sawdust and manure, directly upon a well-worn path, of such nature that its continued smoldering was not observable — could indeed be found by a jury to be a “hidden dangerous condition.”
Relevant also is dictum by the Tennessee Court of Appeals in Pardue v. City of Sweetwater, 54 Tenn.App. 286, 390 S.W.2d 683 (1965) :
“ ‘[A] possessor of land is not under a duty to prevent every possibility of harm but only to exercise due care as to those risks which he should realize are unreasonably great and threaten serious bodily harm in a way unlikely to be appreciated by children whose trespass he should foresee. The ability to appreciate danger varies, of course, with the age of the child, and there can be no recovery if the child is of sufficient age and mental capacity to look out for himself under the circumstances presented. See Prosser on Torts (2d Ed.1955) 441, 443-444; 2 Harper and James, the Law of Torts, 1453-1454.’ Garcia v. Soogian, 52 Cal.2d 107, 338 P.2d 433. See also comment (e) to See. 339 of the Restatement of Torts.” 54 Tenn.App. at 297, 390 S.W.2d at 688.
Although Massa, having leased the Saddle Club property, was no longer its “possessor” he entered onto the leased premises and created the hidden danger of the smoldering sawdust which may or may not have been known to the lessee. There was evidence, however, that Mas-sa was aware of what he had done.
*569Plaintiff’s proofs would be sufficient to reach the jury under the law of several other jurisdictions. See, e. g., Penso v. McCormick, 125 Ind. 116, 25 N.E. 156, 9 L.R.A. 313 (1890); Doren v. Northwestern Baptist Hospital Ass’n., 240 Minn. 181, 60 N.W.2d 361 (1953) ; Dehn v. S. Brand Coal & Oil Co., 241 Minn. 237, 63 N.W.2d 6 (1954) ; Annot., 42 A. L.R.2d 930 (1955). Cf. Stanolind Oil & Gas Co. v. Franklin, 193 F.2d 561 (5th Cir. 1951), Anderson v. United States, 138 F.Supp. 332 (N.D.Cal.1956); McGettigan v. Nat’l Bank of Washington, 115 U.S.App.D.C. 384, 320 F.2d 703 (1963); Prosser, Law of Torts, 437-438.
I would vacate the judgment of the District Court and remand the case for trial.
. It is my view that there is evidence from which the jury could find that plaintiff Don Chandler was a licensee. Edward Lee Webb, a part-time employee of defendant Massa, invited Don’s older brother and cousin to accompany him in seeking employment at the Oak Lake Club. He led the boys across the Saddle Club property to the Oak Lake Club. He knew Don “tagged alone” behind them, but made no effort to stop him. I do not believe, however, that a resolution of whether Don was a licensee or trespasser is crucial to this appeal.
. The existence of the well-worn path is verified by photograph Exhibit 5, which is reproduced at the end of this dissent. The fact that the path was well used and the fences somewhat “mashed down” be fore the accident was substantiated at trial by the testimony of Rosie Webb, grandmother of Joseph and Edward Webb, who worked at the Oak Lake Olub prior to and at the time of appellant’s accident. She testified that she crossed over the bent fences and the Saddle Olub property each day on her way to and from work. There was other clear testimony of the frequent and observable use of the Saddle Club property as a short cut to Massa’s premises.
. 96 Tenn. 148, 33 S.W. 914 (1896) ; 96 Tenn. 163, 33 S.W. 917 (1896); 100 Tenn. 524, 45 S.W. 781 (1898) ; 100 Tenn. 538, 46 S.W. 297 (1898).