We think that a fair question of fact was presented as to whether the city violated its duty of ordinary care in inviting and encouraging ball games to be played on this diamond in Delaware Park, in the city of Buffalo, which was located so close to a public highway that balls batted by the players were liable to drop in the road and strike travelers lawfully traveling thereon.
While the charge of the judge of the City Court is subject to criticism, no suggestion of error was made on the trial by counsel for appellant.
In affirming these judgments we are not to be understood as indorsing all that was said by the learned court at Special Term in affirming the judgments of the City Court.
The judgments should be affirmed, with costs.
All concur, except Crouch and Taylor, JJ., who dissent in an opinion by Crouch, J., and vote for reversal on the law and for granting a new trial. Present — Sears, P. J., Crouch, Taylor, Edgcomb and Thompson, JJ.