Bolsenbroek v. Tully & Di Napoli, Inc.

Steuer, J. (dissenting in part).

A majority of the court is of the opinion that the facts adduced at the trial fail to establish a cause of action. The infant plaintiff was standing either on the sidewalk or in the roadway, looking down at some boys playing in a trench. The trench had been excavated by defendant for the purpose of installing certain utilities and was made pursuant to municipal permit. The trench was marked off from the sidewalk by barricades and flares of the usual smudge pot type were placed about the trench. One of the boys in the excavation ignited a rag from the flame of…