dissenting.
I agree that the trial court erred in granting a judgment notwithstanding a mistrial on the Rubios’ negligence claim. But I dissent *429because the Rubios cannot simultaneously maintain a claim based upon the theory of attractive nuisance. Construing the evidence in the Rubios’ favor, as we are required to by law, they have clearly demonstrated that their child was a licensee or invitee rather than a trespasser. The majority cannot “have it both ways”; the testimony of the Rubios’ own witnesses cannot be relied upon to establish a claim of negligence and then rejected in order to sustain a simultaneous and inconsistent claim of attractive nuisance. That doctrine has no application here.
The Rubios’ investigator, Gillis, testified that Wood told him that he knew children were in the shed to shelter from the rain and that he watched several children, including the Rubio child, playing with the conveyor belt but did nothing to stop them. Wood denies making any such statement, claiming that Gillis’s testimony was “fabricated.” Defendants presented testimony that Wood was not present in the shed at the time of the accident, that they did not know any children were in the shed, and that it was not raining the day of the incident. But we must construe the evidence in favor of the Rubios.
Construed in this manner, these facts do not demonstrate a claim for attractive nuisance but rather for negligence to a licensee or invitee. In Biggs v. Brannon Square Assoc., 174 Ga. App. 13 (329 SE2d 239) (1985), this Court rejected an attempt to rely upon the theory of attractive nuisance when the evidence — which was not “conclusive” as the majority contends, but construed, as we must, most strongly in favor of the plaintiff — demonstrated that he was a licensee. We noted the leading case of Gregory v. Johnson, 249 Ga. 151 (289 SE2d 232) (1982) and its holding that a possessor of land is subject to liability for physical harm to trespassing children. Relying upon this principle, we observed that the theory of attractive nuisance “merely establishes the minimum standard of care that a landowner owes to children regardless of their status as trespassers, licensees or invitees. ... In other words, the same result as to a landowner’s liability may be arrived at without invoking the doctrine where the infant is not a trespasser and the duty to exercise due care under the circumstances has not been met.” (Citations, punctuation and emphasis omitted.) Biggs, supra at 15. “[W]e need not address the merits of the instant claim as if appellant. . . were a mere trespasser. Insofar as appellants relied upon the theory of attractive nuisance and the evidence of record demonstrates that appellant . . . was a licensee, there was no reversible error in the grant of summary judgment to appellee. That theory generally has no place in a case where the circumstances show a duty on the part of a defendant to exercise ordinary care without resort to the doctrine of attractive nuisances.” (Citations, punctuation and emphasis omitted.) Id. at 16 (1).
This case presents precisely such a situation. Construed in favor *430of the Rubios, the evidence shows a duty on the part of Wood and Davis to exercise ordinary care, independent of the theory of attractive nuisance. In Murray Biscuit Co. v. Hutto, 119 Ga. App. 377 (167 SE2d 182) (1969), a small child was injured by a conveyor under very similar circumstances. The child’s mother was an employee of defendant and brought the child into the defendant’s factory despite an “employees only” sign, believing that the defendant allowed children in the factory despite the sign. While the mother was talking to a relative, the child’s hand became entangled in a conveyor, and he was seriously injured.
We observed that a verdict for the defendant in Hutto was not demanded because the jury could have concluded that plaintiff was a licensee. Id. at 386 (2). Evidence was presented that defendant’s supervisor considered the machine dangerous, and that supervisors were present and saw or should have seen the child in close proximity to the machine. Under these circumstances, “it was a jury question (1) as to whether defendant impliedly permitted plaintiff’s presence so as to make him a licensee, and, if so, (2) whether defendant would reasonably expect plaintiff to be within the range of machinery which it knew to be dangerous, and, if so, (3) whether defendant then failed to exercise ordinary care to protect plaintiff under the circumstances.” Id.
Hence, even if we accept Wood and Davis’s contention that Mrs. Rubio brought her child into the packing shed, the facts as construed in favor of the Rubios present an issue of negligence. Testimony that Wood knew the machine was dangerous to children, saw children in the shed, and saw the children, including Jacob Rubio, playing with the conveyor but did not intervene, places this case squarely within the application of the Hutto decision.
Moreover, in another case with remarkably similar facts, this Court has held that farm equipment operating in a farm field in an ordinary manner is not an attractive nuisance. In Johnson v. Lanier, 140 Ga. App. 522 (231 SE2d 428) (1976), a farmer hired an independent contractor to harvest a field, and the farmer furnished a tractor and trailer to accomplish the work. A number of the contractor’s relatives participated in the work, and the four-year-old grandson of the contractor was in the care of a relative in a house across the road from the field. The child somehow eluded his babysitter, entered the field unnoticed, and became entangled in the power take-off valve of the tractor, suffering multiple severe injuries.
In affirming summary judgment in favor of the farmer, this Court rejected the contention that the tractor was an attractive nuisance: “There was no allegation or evidence that the tractor involved was operating in a different fashion from any other tractor with its power take-off valve in operation. A farm tractor with a trailer *431attached is commonly found in a corn field when corn is being harvested. It would be extending the doctrine of attractive nuisance too far to hold that a farm tractor in a farm field running in a normal manner and not dangerous in itself, although possibly attractive to children, is inherently dangerous, even though such a tractor might be capable of inflicting injury if improperly or carelessly used. [Cit.]” Id. at 525 (4).
Decided March 20, 1998. Mitchell M. Shook, for appellants. Reinhardt, Whitley & Wilmot, Glenn Whitley, J. Reese Franklin, for appellees.Accordingly, the issue presented for the jury is one of negligence, not attractive nuisance, and defendants were entitled to a partial judgment notwithstanding a mistrial on the claim of attractive nuisance.
For these reasons, I respectfully dissent.
I am authorized to state that Presiding Judge Birdsong joins in this dissent.