Opinion
January 22, 1937.
In an action for damages for injuries sustained by an infant plaintiff, who fell from the top of a pile of beams lawfully placed on the highway, judgment for plaintiff reversed on the law and the complaint dismissed, with costs. In our opinion, the spaces of about five inches between the beams on the top of a pile, into one of which the infant plaintiff's foot slipped, causing him to trip, did not create a dangerous condition which required the appellant to anticipate an accident such as happened to the infant plaintiff. In Boylhart v. DiMarco Reimann, Inc. ( 270 N.Y. 217) the beams were piled in such an insecure and defective manner as to create an inherently dangerous condition. Hagarty, Johnston, Adel and Taylor, JJ., concur; Lazansky, P.J., dissents and votes to affirm. Appellant did not move to dismiss on the ground that a dangerous condition was not shown and did not except to the charge in that respect. It may not be held as a matter of law that appellant did not leave the lumber in a condition unsafe for children likely to play thereon.