Isaac Leisy Brew. Co. v. Kapl

28 Ohio C.C. Dec. 476, 22 Ohio C.C. (n.s.) 309

Opinion

HENRY, J.

In the action below the defendant in error recovered a verdict and- judgment for injuries sustained by him from the overthrow of a bar fixture which had been temporarily placed during removal, in the space, between sidewalk and curb in the-street, in front of the plaintiff’s premises. It was left in unstable equilibrium, and the defendant in error, a child of six years, intermeddled with it so that it fell over on him.

Because this was a public street where the child had a right to be and whdre it was to be expected that small children would exercise their childish instincts, a majority of the court are unwilling to hold that the doctrine of Wheeling & L. E. Ry. v. Harvey, 77 Ohio St. 235 [83 N. E. 66; 19 L. R. A.(N. S.)1136; 122 Am. St. 503; 11 Ann. Cas. 981], as applicable to private premises, rules in this case; especially as that decision distinguishes instead of in terms reversing, Harriman v. Railway, 45 Ohio St. 11 [12 N. E. 451; 4 Am. St. 507].

Judgment affirmed.

Marvin, J., concurs. Winch, J., dissents.