Opinion
March, 1925.
Judgment reversed upon the law and the facts, and a new trial granted, with costs to abide the event. We are of the opinion that the placing of the film, attractive to children, in a lot adjoining defendant's premises, where children were in the habit of congregating and where they saw it burned, established prima facie the negligence of the defendant, and that the case at bar is distinguishable from Walsh v. F.R.R. Co. ( 145 N.Y. 301). In that case defendant was not engaged in burning anything which might be classed as inherently dangerous and enticing to children upon its own land. Rich, Jaycox, Kelby and Young, JJ., concur; Kelly, P.J., dissents upon the ground that the films picked up by the boys became dangerous because they took them to their homes a block away, and there set fire to them, and this was an intervention of an independent cause for which defendant was not liable.