(concurring)—I am in doubt as to whether the showing here made is sufficient to warrant the conclusion that there was wanton misconduct. At any rate, it seems to me that affirmance ought not to be predicated upon that drastic principle if the application of the familiar rules of negligence and contributory negligence call for the same result. I think they do.
That appellants are chargeable with at least ordinary negligence is established beyond question. The trial court concluded that there was contributory negligence on the part of Mrs. Greetan in attempting to go to the garbage can in absolute darkness, without the use of any light. In my view, this conclusion of law is not supported by the unchallenged findings of fact and the undisputed evidence.
Appellants do not question the trial court’s finding of fact that Mrs. Greetan “did not know and had no reason to know” of the existence of the excavation; that, except for the clotheslines and posts (which were not the cause of the fall), the route followed by Mrs. Greetan on the night in question would have been a safe place for travel on foot at night had it not been for the excavation, which she had no reason to believe existed; and that, “despite the absence of lighting in the back yard,” Mrs. Greetan would have been able to proceed “in safety” on her trip to the garbage can had it not been for the “unusual and unexpected” hazard created by appellants. Mrs. Greetan testified, without contradiction, that she had, on many previous occasions, both in daylight and in darkness, followed the route around the edge of the back yard and had never had any reason to believe that it was not safe.
*362The unquestioned findings and evidence set out above, in my opinion, compel the conclusion of law that Mrs. Greetan was not negligent in proceeding through the darkness, without a light, along the indicated route. She had no notice of the hazard. She was not called upon to anticipate that appellants would create this “unusual and unexpected” hazard, without which she would have been able to proceed in safety. Accordingly, I would hold that Mrs. Greetan is not chargeable with contributory negligence. This would call for affirmance without the necessity of deciding the question of wanton misconduct.