dissenting. I am constrained to dissent since I do not share the view of the majority of the court on the question of invitation and negligence. I am of the opinion that plaintiff Vera R. Goyette was a mere licensee and not an invitee and that negligence of the defendant has not *21been shown. I wish to discuss at greater length the question of negligence.
Even assuming the plaintiff wife to have been an invitee, it is stated in 38 Am. Jur., Negligence §97, at page 757: “The liability of an owner or occupant to an invitee for negligence in failing to render the premises reasonably safe for the invitee, or in failing to warn him of dangers thereon, must be predicated upon a superior knowledge concerning the dangers of the premises to persons going thereon. It is when the perilous instrumentality is known to the owner or occupant and not known to the person injured that a recovery is permitted. The owner is liable to invited persons for injuries 'occasioned by the unsafe condition of the land or its approaches, if such condition was known to him and not to them, and was negligently suffered to exist, without timely notice to the public or to those who were likely to act upon such invitation.’ ” See 1 Shearman & Redfield, Negligence (rev. ed.) §21, p. 45.
The rule as to notice is stated by Mr. Justice Harlan in Bennett v. Railroad Co., 102 U. S. 577, at page 580, as follows: “* * * that the owner or occupant of land who, by invitation, express or implied, induces or leads others to come upon his premises, for any lawful purpose, is liable in damages to such persons — they using due care — for injuries occasioned by the unsafe condition of the land or its approaches, if such condition was known to him and not to them, and was negligently suffered to exist, without timely notice to the public, or to those who were likely to act upon such invitation.”
In Glenn v. Oakdale Contracting Co., 257 N. Y. 497, it appeared that the plaintiff Virginia D. Glenn was injured by a protruding spike on a temporary roadway over an excavation in the city of New York. Because the trial court refused to instruct that, before the plaintiff could recover, evidence of the existence of the defect for a sufficient length of time to charge the defendant with actual or constructive *22notice was necessary, the Court of Appeals reversed the judgment of the Appellate Division and that of the Trial Term. See also Molte v. Corn Exchange Bank Trust Co., 267 N. Y. 544, and Kilgore v. Shepard Co., 52 R. I. 151.
OCTOBER 6, 1959. Rosenstein & Jacques, for plaintiffs. Graham, Reid, Ewing & Stapleton, Edward J. Regan, for defendant.In the instant cases it does not appear by any direct evidence that the defendant knew of the condition of the surface of the pontoon where her injury occurred. The trial justice found that it could be reasonably inferred from the evidence that the surface was of such an age that a person stepping upon it would fall through, and also that the condition thereof was not observable to the naked eye of the plaintiff Vera R. Goyette. The trial justice appears to have concluded that the surface was in a state of disrepair for a considerable time because of the rust, pieces of which were taken from plaintiff’s leg. It seems to me that such an inference is not tenable since it is common knowledge that even a firm piece of steel could rust overnight.
From a reading of the transcript there appears to be a complete absence of knowledge on the part of the defendant of a defect in the pontoon and absolutely no notice of the defect which caused the plaintiff Vera R. Goyette’s injury. In my opinion there should be a decision for the defendant.
On Motion for Reargument.
Per Curiam.After our decision in the above cases the defendant asked and received permission to present a motion for leave to reargue. Pursuant thereto he has filed such a motion, setting out therein certain reasons on which he bases his contention that justice requires a reargument of the cases.
We have carefully considered all those reasons and we are of the opinion that they are without merit.
Motion denied.