The mother testified that she saw the radiator cover fall on the child. The jury accepted *360this version, and defendant offered no contradictor proof as to how the accident happened. It was also a jury question then whether the mere fitting of such a radiator cover into the molded recess was a sufficient safeguard against the cover falling on invitees to defendant’s premises. Since continued use over the years is very likely to reduce the closeness of the fitting, so as to make the radiator cover unstable, there was a ground for finding negligent maintenance. The proof established that the radiator cover was held in place, at the time of the accident, by nothing-more than its own weight leaning against the molded recess.
Surely, it is easy enough to speculate after an accident, and even more so after the trial, on the many ways in which an accident may have happened. This court has no greater privilege in this regard than the trial jury. In this case the charged negligence was merely that the radiator cover was not properly secured; and that because of its instability it fell upon the child. Maybe the proof was contrived, but it was credible and it was not contradicted. An employee of defendant testified to seeing- a little girl running around the lobby, but he was not sure if it was the same child who later was injured. Indeed, even if a little child, two and a half years of age, by running into this cover, as speculated by defendant, caused it to fall on her, there was a fair jury question whether it was a negligently maintained unstable cover. Of course, if the cover never fell, there was no case, but the jury believed plaintiff’s proof offered on this element of the case.
It is also noteworthy that there was no proof either way of common design or extensive use with respect to radiator covers. Hence, there is no support for the theses either that this radiator cover conformed or did not conform to common design or extensive use.
As for the generality of the charge, it was defendant’s duty by proper requests to elicit more specific instruction, if that was its wish. However, the requests were either not intelligible or improper.
Moreover, if the majority is correct in its analysis, there should be no new trial but a dismissal of the complaint.
Accordingly, I dissent and vote to affirm the verdict and judgment in favor of plaintiffs.
McNally and Eageb, JJ., concur with Stetteb, J.; Bbeitel, J. P., dissents and votes to affirm in opinion in which Stevens, J., concurs.
Judgment reversed, on the law and the facts, and a new trial ordered, in the exercise of discretion, with costs to abide the event.