OPINION
By SKEEL, P. J.
This appeal on questions of law is taken from a judgment of the common pleas court wherein, at the conclusion of the plaintiff’s case, the court directed the jury to return a verdict for the defendant.
The plaintiff’s amended petition alleges that on the 7th day of June, 1940, and for some time prior thereto, the defendant was the owner of a vacant parcel of ground at the southeast corner of Lorain Avenue and West 130th Street in the City of Cleveland. That some time prior to said date, the defendant placed four large cylindrical gasoline tanks on the lot which were to be used as a part of the equipment for a gasoline station to be erected on said lot. The tanks were placed in close proximity to each other and were not in any [322]*322manner fastened, braced or secured. The; largest tank weighed about 3409 pounds and was placed against and parallel to a fence running along the south line of the property which fence separated the defendant’s property and the playground of o. public school which school faces on the east side of West 130th Street. The westerly end of this tank was from 15 to 20 feet east of the east sidewalk line of West 130th Street. The tank which deceased was rolling at the time of his death, as hereinafter described, and which weighed 2320 pounds, had been placed perpendicular to and against the west end of the tank next to the fence. Another tank weighing 1150 pounds had been placed immediately to the east of 2320 pound tank and was against and parallel with the tank first described. The fourth tank weighing 1150 pounds was placed perpendicular to the fence and was against the easterly end of the first and third tanks above described:
The plaintiff’s decedent, a boy of about fifteen years of age, together with two other boys, were on the evening of June 7, 1940, playing on and about these tanks. The decedent got upon the one which was parallel to West 130th Street (the second tank above described) and moved it toward West 130th Street (in the manner of log rolling), when he had gotten almost to West 130th Street he reversed his direction and started back toward the other tanks. As he came near the place from which he had started he attempted to jump from the rolling tank to the end of the smaller tank just to the east. He missed his step and fell in front, of the tank he had-just left which continued to roll, whereby the decedent was crushed and as a result he died within a few hours.
The plaintiff alleges there was a slope of the ground where the tanks were placed and that because the tanks could be easily moved, were of great weight and close to a much travelled public highway, and were placed on premises where children were accustomed to play, and adjacent to a school play ground, they constituted a dangerous condition to pedestrians and school children and as there placed constituted a nuisance and a trap. The plaintiff further claims that the defendant knew, or, by the exercise of ordinary care, should have known that under the 'circumstances children would make use of the tanks as a place to play and failed to secure the tanks or prevent the children from playing thereon, and its negligence in this regard was the direct and proximate cause of decedent’s death.
The defendant’s answer denies negligence on its part and alleges that the negligence of the deceased proximately contributed to his death. The plaintiff filed a reply denying negligence on the part of the decedent.
[323]*323Upon trial, the plaintiff produced ’evidence describing the lot, the position of the tanks and the manner in which the decedent met his death. The parties further stipulated in part as follows.
“1. From February 20, 1940, until the present time and on June 7,1940. The Standard Oil Co., was and is the owner of a corner lot located on the southeast corner of Lorain Avenue and West 130th Street in the City of Cleveland, Ohio.
2. On May 29, 1940, there were delivered to The Standard Oil Company upon these premises four cylindrical underground storage tanks, weighing respectively 3490 pounds, 2320 pounds, 1150 pounds and 1150 pounds which The Standard Oil Company intended to have installed underground as storage tanks for the purpose of storing gasoline or other petroleum products. Said tanks were located upon said premises on the date of June 7, 1940.
3. On June 7, 1940, plaintiff’s decedent, Martin F. Patton, Clifford Scott and John MeFadden, on their way to attend an evening movie show, came upon said premises of the defendant, The Standard Oil Company at about 8:45 o’clock P. M., climbed upon said tanks which were then upon the premises and began to move the tanks by standing thereon and making them revolve in the manner of “log rolling.” While the boys were in the process of rolling one or more tanks, Martin F. Patton, plaintiff’s decedent, in attempting to jump from one rolling tank to another, missed his jump and fell to the ground and was crushed to death by the tank from which he had jumped.”
Thereupon plaintiff, after further evidence as to the next of kin, (this being an action for wrongful death) rested his case and upon motion by the defendant the court directed the jury to return a verdict for the defendant.
It is the contention of the plaintiff that because of the proximity of the tanks to the public highway and the playground of a public school, and because children were accustomed to play upon the vacant lot and because the tanks could be moved easily and because of the defendant’s failure to fasten the tanks to the ground or to take positive steps to prevent children from playing thereon, it was guilty of negligence which was the proximate cause of the death of decedent.
From the undisputed facts developed by the evidence and the stipulation, the tanks as delivered to the property did not create a dangerous situation. Their delivery was for a [324]*324lawful purpose and so* long a,s they were not disturbed by trespassers, an entirely static condition prevailed.
Situations like this have been presented to the courts of Ohio on a number of occasions, but in no case under facts similar to those here presented has liability been imposed upon the property owner. To hold otherwise would place an unwarranted burden upon the occupant of private property. One could not safely deliver building materials to his property without becoming liable to trespassers seeking to misuse his property and materials.
The supreme court in the case of Railroad Co. v Harvey, and Swartz v Akron Water Works Co., 77 Oh St 234, said in the first paragraph of the syllabus:
“1. It is not the duty of an occupier of land to exercise care to make it safe for infant children who come upon it without invitation but merely by-sufferance.”
And in the body of the opinion, beginning on page 248, quoting in part from an opinion of Judge Cooley in Powers v Harlow, 53 Michigan 507, we find:
.“That a landowner is under no obligation to use care to protect a trespasser, is a broad and until recently undisputed rule without exceptions; liability for injuries sustained by such, being limited to cases of intentional or wanton injuries. The rule with this limitation, is sustained today by the great weight of authority.” “It is contended by some law writers and it has been held in some cases, that an exception exists in favor of children of tender years.
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OPINION
By SKEEL, P. J.
This appeal on questions of law is taken from a judgment of the common pleas court wherein, at the conclusion of the plaintiff’s case, the court directed the jury to return a verdict for the defendant.
The plaintiff’s amended petition alleges that on the 7th day of June, 1940, and for some time prior thereto, the defendant was the owner of a vacant parcel of ground at the southeast corner of Lorain Avenue and West 130th Street in the City of Cleveland. That some time prior to said date, the defendant placed four large cylindrical gasoline tanks on the lot which were to be used as a part of the equipment for a gasoline station to be erected on said lot. The tanks were placed in close proximity to each other and were not in any [322]*322manner fastened, braced or secured. The; largest tank weighed about 3409 pounds and was placed against and parallel to a fence running along the south line of the property which fence separated the defendant’s property and the playground of o. public school which school faces on the east side of West 130th Street. The westerly end of this tank was from 15 to 20 feet east of the east sidewalk line of West 130th Street. The tank which deceased was rolling at the time of his death, as hereinafter described, and which weighed 2320 pounds, had been placed perpendicular to and against the west end of the tank next to the fence. Another tank weighing 1150 pounds had been placed immediately to the east of 2320 pound tank and was against and parallel with the tank first described. The fourth tank weighing 1150 pounds was placed perpendicular to the fence and was against the easterly end of the first and third tanks above described:
The plaintiff’s decedent, a boy of about fifteen years of age, together with two other boys, were on the evening of June 7, 1940, playing on and about these tanks. The decedent got upon the one which was parallel to West 130th Street (the second tank above described) and moved it toward West 130th Street (in the manner of log rolling), when he had gotten almost to West 130th Street he reversed his direction and started back toward the other tanks. As he came near the place from which he had started he attempted to jump from the rolling tank to the end of the smaller tank just to the east. He missed his step and fell in front, of the tank he had-just left which continued to roll, whereby the decedent was crushed and as a result he died within a few hours.
The plaintiff alleges there was a slope of the ground where the tanks were placed and that because the tanks could be easily moved, were of great weight and close to a much travelled public highway, and were placed on premises where children were accustomed to play, and adjacent to a school play ground, they constituted a dangerous condition to pedestrians and school children and as there placed constituted a nuisance and a trap. The plaintiff further claims that the defendant knew, or, by the exercise of ordinary care, should have known that under the 'circumstances children would make use of the tanks as a place to play and failed to secure the tanks or prevent the children from playing thereon, and its negligence in this regard was the direct and proximate cause of decedent’s death.
The defendant’s answer denies negligence on its part and alleges that the negligence of the deceased proximately contributed to his death. The plaintiff filed a reply denying negligence on the part of the decedent.
[323]*323Upon trial, the plaintiff produced ’evidence describing the lot, the position of the tanks and the manner in which the decedent met his death. The parties further stipulated in part as follows.
“1. From February 20, 1940, until the present time and on June 7,1940. The Standard Oil Co., was and is the owner of a corner lot located on the southeast corner of Lorain Avenue and West 130th Street in the City of Cleveland, Ohio.
2. On May 29, 1940, there were delivered to The Standard Oil Company upon these premises four cylindrical underground storage tanks, weighing respectively 3490 pounds, 2320 pounds, 1150 pounds and 1150 pounds which The Standard Oil Company intended to have installed underground as storage tanks for the purpose of storing gasoline or other petroleum products. Said tanks were located upon said premises on the date of June 7, 1940.
3. On June 7, 1940, plaintiff’s decedent, Martin F. Patton, Clifford Scott and John MeFadden, on their way to attend an evening movie show, came upon said premises of the defendant, The Standard Oil Company at about 8:45 o’clock P. M., climbed upon said tanks which were then upon the premises and began to move the tanks by standing thereon and making them revolve in the manner of “log rolling.” While the boys were in the process of rolling one or more tanks, Martin F. Patton, plaintiff’s decedent, in attempting to jump from one rolling tank to another, missed his jump and fell to the ground and was crushed to death by the tank from which he had jumped.”
Thereupon plaintiff, after further evidence as to the next of kin, (this being an action for wrongful death) rested his case and upon motion by the defendant the court directed the jury to return a verdict for the defendant.
It is the contention of the plaintiff that because of the proximity of the tanks to the public highway and the playground of a public school, and because children were accustomed to play upon the vacant lot and because the tanks could be moved easily and because of the defendant’s failure to fasten the tanks to the ground or to take positive steps to prevent children from playing thereon, it was guilty of negligence which was the proximate cause of the death of decedent.
From the undisputed facts developed by the evidence and the stipulation, the tanks as delivered to the property did not create a dangerous situation. Their delivery was for a [324]*324lawful purpose and so* long a,s they were not disturbed by trespassers, an entirely static condition prevailed.
Situations like this have been presented to the courts of Ohio on a number of occasions, but in no case under facts similar to those here presented has liability been imposed upon the property owner. To hold otherwise would place an unwarranted burden upon the occupant of private property. One could not safely deliver building materials to his property without becoming liable to trespassers seeking to misuse his property and materials.
The supreme court in the case of Railroad Co. v Harvey, and Swartz v Akron Water Works Co., 77 Oh St 234, said in the first paragraph of the syllabus:
“1. It is not the duty of an occupier of land to exercise care to make it safe for infant children who come upon it without invitation but merely by-sufferance.”
And in the body of the opinion, beginning on page 248, quoting in part from an opinion of Judge Cooley in Powers v Harlow, 53 Michigan 507, we find:
.“That a landowner is under no obligation to use care to protect a trespasser, is a broad and until recently undisputed rule without exceptions; liability for injuries sustained by such, being limited to cases of intentional or wanton injuries. The rule with this limitation, is sustained today by the great weight of authority.” “It is contended by some law writers and it has been held in some cases, that an exception exists in favor of children of tender years. The very reasons given should lead us to doubt the solidity of the foundation upon which these cases rest, especially where none of the reasons are of recognized authority * * * . The assertion that the weight of authority supports the plaintiff’s contention in this case seems to us incorrect * * V’ “It may be true that in cases involving turn-tables, a majority of the cases, which are necessarily few, have followed the case of Railroad Co. v Stoute, supra, 17 Wallace 657; but there should be a legal principle underlying the rule laid down in that case, and that principle has been assiduously sought for by some of the courts, without success, as we have seen. * * *
“The term ‘attractive nuisance’ as applied is a new one in the books, and the plausible application of the well-known principle that one must so occupy his own as not to do harm to the rights of others, should not be construed to so restrict [325]*325the use of private lands as to make it necessary to guard and protect trespassers. * * * *
“It has been his duty to guard those licensed to enter, but beyond that he has not been required to do. In our anxiety to prevent personal injuries we should not go so far as to overturn private rights.”
Following the Harvey case supra, the case of Hannan, Admr. v Ehrlich, 102 Oh St 176 came before the supreme court. In the Hannan case, the action was brought claiming that defendant’s negligence in maintaining a sand pit on its premises was the direct and proximate cause of decedent’s death. The defendant maintained a sand pit on his premises which had been excavated to a depth of 35 to 40 feet and the bank was perpendicular and at times overhanging in places. And while the pit was some distance from the street it was alleged that children were accustomed to enter the premises and use the same as a playground, all of which defendant knew, “or by the exercise of ordinary care should have known of such use and the condition of such excavation and walls thereof, and permitted, allowed and acquiesced in the use of said sand bank and grounds by said children in making a playground upon said premises.”
The decedent, a boy of eight years of age, was playing at the foot of the bank when a cave-in occurred causing his death. In affirming the trial court where a demurrer had been sustained to plaintiff’s petition and final judgment for the defendant entered, the’supreme court in paragraphs 3, 4, 5 and 6 of the syllabus held:
“3. Actionable negligence exists only where the one whose act causes or occasions the injury owes to the injured person a duty created either by contract or by operation of law, which he has failed to discharge.
4. A licensee takes his license subject to its attendant perils and risks, and the licensor owes him no duty except to refrain from wantonly or wilfully injuring him and to exercise ordinary care after discovering him to be in peril; he should not be exposed to hidden dangers, pitfalls or obstructions.
5. The foregoing rule is not altered by the fact that the injured child is a child of tender years.”
In the Harvey case and in the Hannan case, supra, no reference seems to have been made to the case of Railroad Company v King, 68 Oh St 210, where the supreme court had [326]*326for consideration circumstances very similar to those in the Hannan case.
The railroad company had partly leveled off a tract of ground, leaving a bank ten or twelve feet high. The level part of the land, up to the bank, had been used by the boys of the community as a baseball grounds and young boys who were too small to play ball would watch the game and play at the foot of the bank. The bank caved in and injured King, a boy of twelve years of age. While some of the dicta expressed in the opinion on the subject of “attractive nuisance” which is in conflict with the court’s opinion in the Harvey case, was thereby to the extent of the conflict modified, yet the syllabus of the case provides:
“The owner of an unenclosed tract of land within a city, which has been graded to a level, leaving a bank on one side of the premises, to which premises adults are not invited, but suffered to resort, for the purpose of playing baseball which amusement attracts to the grounds and along the bank young boys to witness the game, is not liable for injury to one of such boys, caused by the caving or falling of the top of the embankment, where its condition does not, to the knowledge of such owner, indicate a reasonable probability of such result.”
In the case of Ryan v Tower, 128 Mich. 463, the defendant owned a small pump house. “In the house was a small overshot waterwheel. The plaintiff, a girl about twelve or thirteen years of age, was in the habit of passing this pump house on the way to school with her brothers and sisters; going across lots through the field, because it was nearer. For some time previous to the time of the accident, a hole existed in the stone wall of the house enclosing the wheel, through which the children went to play on the wheel. On the> day in question, the brothers of plaintiff, on the way from school crawled through this hole and mounting the wheel were able by their weight to turn the wheel part way round and back. A younger sister, aged eight years, got caught between the wheel and the wheel pit. The plaintiff heard her screams and went through the hole to her succor and aided in rescuing her and was herself injured. In the opinion, Hooker J., after reviewing'a number of turntable cases, says:
“Here we have the doctrine of the turntable cases carried to its natural and logical result. We have only to add that every man who leaves a wheelbarrow, or a lawnmower, or a [327]*327spade upon his lawn; a rake with its sharp teeth pointing upward, upon the ground, or leaning against a fence; a bed of mortar prepared for use in his new house; a wagon in his barnyard, upon which children may climb, and from which they may fall; or who turns in his lot a kicking horse, or a cow with a calf — does so at the risk of having the question of his negligence left to a sympathetic jury *
In all of these cases the children involved were much younger and less able to understand the dangers which confronted them than in the case at bar. Here we have a young man of fifteen years of age, playing with a tank which weighed over a ton. Smaller children could not have endangered themselves because under the circumstances they could not move an object of such weight and size. In attempting to play with this tank, the decedent was old enough to know of the dangers in which he voluntarily placed himself. The tank as it was placed upon the ground presented no danger whatever to any one, even a trespasser, until th'e trespasser, by his own act, created the danger by attempting to roll it from place to place. Certainly against such dangers the defendant owed no duty to attempt to protect- the plaintiff’s decedent upon the authority of the- cases cited above, which represent the great weight of authority upon the subject.
The plaintiff relies upon four cases to support his contention that the defendant owed plaintiff’s decedent the duty of ordinary care to protect him against the claimed dangers present under the circumstances:
Ziehm etc v Vale, 98 Oh St 306.
DeGroodt Exec. v Skrbina Admr., 111 Oh St 108.
Coy v C. D. & M. Electric Co., 125 Oh St 283.
Gottesmann v City of Cleveland, 142 Oh St 410.
These cases are clearly distinguishable from the case at bar.
In the Ziehm case the defendant parked his automobile at the curb and while he was absent, two or three small boys got on the running board. The children asked for a ride when the defendant returned to his automobile, but he refused and chased them away. It was the claim of the plaintiff that he, an infant of four and one-half years of age, remained on the running board as the defendant started to drive away. Here the court held that the static condition of defendant’s property was made perilous ‘“by the active and negligent operation thereof by the defendant.”
In the DeGroodt case and in the Gottesmann case, supra, the place where the accident in each case happened, was on [328]*328public property where the plaintiffs had a legal right to be and the defendant therefore owed the duty of ordinary care which certainly is not true as to a trespasser.
And in the Coy case, supra, the defendant maintained a dangerous electrical transformer in close proximity to the street and permitted the fence to become in a state of disrepair so that persons could enter. The court held:
“When the static condition of premises is made perilous by the active and negligent operation of apparatus thereon, by the person owning or controlling the same, a liability arises for injury resulting therefrom.”
In each of these cases the supreme court cites the Harvey case. In each case the court distinguishes the case then being considered from the Harvey case but in no instance does the court attempt to modify its holding.
For the foregoing reasons we conclude that upon the undisputed' facts as shown by plaintiff’s evidence and the stipulation, the court correctly directed a verdict for the defendant.
Tho judgment of the court of common pleas is therefore affirmed.
LIEGHLEY, J., concurs.
MORGAN, J., dissents.