(dissenting). I dissent and vote to affirm.
There is nothing to show that the State knew or should have known of the existence of the old well and' its potential danger to others. The lands in question, a tract of about 4,000 acres, formed part of the 65,000-acre State reforestation area spread over six counties. It was planted to forest trees and was not designed or intended for public recreational purposes. True, hunting was permitted during the fall season and, so far as this record shows, no one had ever been put off for going into the area for other purposes. This, however, is not enough to give the claimants the status of an invitee. At the very most, they were licensees to whom the State owed no duty other than to refrain from inflicting willful or intentional harm and the creation of snares and traps (Restatement, Torts, § 342). The State was under no duty to these claimants to inspect and warn. They were there on a personal errand, the picking of berries, and, according to Mrs. Le Roux, at a place about twenty feet from the path she pushed and forced her way through bushes “ above my waist ” three or four feet high. She observed nothing, was feeling her way through when she fell. Those circumstances tend to emphasize the unwarranted extent to which the claimant would have us push the role of liability by a reversal here. As the case comes to us the issue of contributory negligence is not open — and it need not be to affirm — since, on this record, the weight of evidence as to negligence in the first instance preponderates in favor of the State.
The judgments should be affirmed, with costs.
Conway, Desmond, Fuld and Froessel, JJ., concur with Lewis, Ch. J.; Dye, J., dissents in opinion in which Van Voorhis, J., concurs.
Judgments reversed, etc.