dissenting.
Clearly, there are triable issues of fact and, clearly, the majority opinion is in error in affirming the grant of defendants’ motion for summary judgment.
Involved here is a road which takes the traveler to a commercial ski area at the end. The majority, and probably the defendants, too, concede that it is a public road, “at least to the point where it reaches the boundary of the Miniver property.” The majority agrees with the defense contention that the road, as it then begins to traverse the Miniver property until the terminus is reached, i.e., the commercial ski area, is private.
Plaintiffs’ contention, and obviously a valid one, is that those persons who have used the road over the years are aware only that there is a road, and if you travel it, the commercial ski area awaits you at the end. In other words, a road is a road is a road. Plaintiffs tentatively concede that land bordering on either side of the road may be privately owned.
Our attention has been brought to the fact, as conceded by the majority, that the road, all the way into the commercial ski area, has been maintained by the county. The majority buys the proposition that this was something of a trade — i.e., county gets to park its equipment at the commercial ski area property in turn for working on the road. Such arrangement may be legal in Bingham County, but whether so or not is of no moment. What is important is that any person seeing public county equipment at the end of the road, where the road flows into a commercial ski resort, is justified in concluding that the road is public. That understanding will be fortified where that equipment has been seen in use at improving the road. Whether it has become a public road under the provisions of I.C. § 40-103 is not at all dispositive. If it has, and a jury so finds from the evidence, so much the better for the plaintiffs. If it has not, defendants are not home free if they have contributed to the creation of the appearance of the road being public.
The majority explains the storage of public equipment on the ski area property as a ‘‘privilege,’’ one justifiably conferred on the county to make life easier for the county equipment operators. While it may read good to the majority eyes, such has little to do with what people of common perception would conclude as to the road being for private use only or for the use of the traveling public.
The majority, true to its false doctrine in Huyck, again in Johnson, and lastly in McGhee v. City of Glenns Ferry, 111 Idaho 921, 729 P.2d 396 (1986), is quite content to make a holding on its own view of the record that the deceased, John Rice, was a trespasser on a private road, and not even a recreational trespasser under the provisions of I.C. 36-1604. The majority turns this argument away, mentioning the Johnson case, but not discussing it. Instead, it discusses the Huyck case at some length. The majority states: “No inference of implied invitation can arise in the face of the uncontroverted evidence of the tubular steel barricade placed across the road, and the numerous and clearly visible ‘no trespassing’ signs.” Majority op., p. 1071, 739 P.2d p. 370. What the majority points to is the existence of some signs. What also exists, however, is evidence showing extensive use by the public including the previ*1073ously mentioned maintenance and a well-worn path circumventing the barricade. In addition, the signs themselves were, due to their placement, off of the road and on the surrounding property, lending credence to a user’s interpretation that the signs are placed to deter off-road travel over the private property, but not the now-alleged private road. Where evidence exists not only of use by the public but also some indication that the road was private, then a jury question exists as to whether the road reasonably appeared to be a public road. A jury question also exists as to the adequacy of the warning, and whether Mr. Rice’s negligence, if any, was a contributing cause to the fatal accident. Clearly, there were two possible contributing probable causes of the collision — the driver and the wire snare.
Strangely missing from the majority opinion is any mention that the man-killing device which was strung across this roadway had just been erected. In that way, the case is on all fours with the Johnson case where the man-killing device was a deep trench cut across a roadway which was, as here also, being commonly used by a general public who had no way of knowing that it was not for public use, or that its public use would be suddenly and fatally terminated in a manner which would carry the first message that its public use was discontinued.
The district court concluded that “the record is replete with evidence of the existence of various warnings concerning the nature of the road and the presence of the cable.” R., p. 73. Even putting the status of the road aside, the cable’s condition itself is still at issue. The condition of the cable could constitute a willful and wanton act as to a trespasser. “Whether an act is willful or wanton depends on the particular circumstances of each case, and one of the factors distinguishing a willful and wanton act is such absence of care for the person of another as exhibits a conscious indifference to consequences.” Johnson, supra, (Huntley, J., dissenting), citing Dossett v. Anderson, 41 N.E.2d 313, 314 111.App. 376 (1942). Conflicting evidence, including the condition of the signs at the cable as well as the number or presence of streamers on the cable, could raise a factual issue as to whether Miniver’s conduct was neither willful nor wanton, assuming that the recreational trespass act has any applicability to this case.1
Admittedly, in this case, there may have been signs and other apparatus which a jury might have considered as adequate warning. But, we five justices are not a jury.
. The McGhee case was a gross misapplication of the Recreational Trespass Act — so gross that it could be categorized as a judicial tragedy. The so-called trespass there was a little girl using a swing in a public park. On almost the same day that this Court's opinion issued, the highest appellate court in New York, in reviewing a plaintiffs judgment for injuries received in a city public park, as in McGhee, was 7-0 in its holding that the immunity of the Recreational Trespass Act to a landowner who does nothing to encourage or discourage recreational trespass "would be superfluous and could serve no purpose, i.e., where the owner, like defendant here, has already encouraged public use and assumed the duty of reasonable care in the operation of its park____" Ferres v. City of New Rochelle, 68 N.Y.2d 446, 510 N.Y.S.2d 57, 502 N.E.2d 972 (Ct.App.1986).