¶1dissenting.
¶2I respectfully dissent for the reason that I believe the evidence justified submission to the jury of the issue of the defendant’s negligence and would therefore affirm the jury finding on liability, but, because the damage award was clearly inadequate, I would remand for a new trial on the issue of damages only.
¶3At the expense of some repetition of facts contained in the majority opinion, I state my view as follows:
¶4The evidence shows that Philip and his parents were guests at the farm home of the defendant. The family had begun their visit the day before the accident. On the day of the incident, the plaintiff was permitted by his parents to play with the sprinkler on the lawn adjacent to the farm residence. Philip was at that time placed in the charge of his aunt, age 12, and his uncle, age 8, who were playing with him. .
¶5At that time in the farmyard and immediately adjacent to the lawn, there was located an irrigation ditcher *14belonging to the defendant. It had been placed in that location the day preceding the accident by a neighbor who had returned the ditcher after borrowing it. The ditcher might be described as a two-wheel sulky consisting of the two wheels, a rectangular inverted U axle with a single bar frame clamped to and crossing the axle at right angles. Attached at the rear of the single-bar frame is the ditcher, a large V-shaped, two-bladed plow. Between and connecting the two blades of the plow and near the lower edge thereof are two steel bars, the evident purpose of which is to strengthen the plow and to assure that the two blades maintain their relative positions. At the front end of the frame is a straight cantilever hitch. The evidence shows that when the ditcher is not in use, it may stand either with the plow in the air and the hitch end on the ground, or vice versa. The evidence further shows that the weight distribution of the machine is such that if the blades are in the air only a “very little” pressure would be required to bring the blades to the ground. On the other hand, if the blades are resting on the ground it would take “a considerable amount of pressure” on the hitch end of the frame to put the biades in the air. The machine itself weighs about 800 pounds and the bulk of the weight is in the blades. When the blades are in the air, the strengthening bars are within the reach of a small child.
¶6Shortly before the accident the defendant observed the children playing in the yard and noted the location and position of the ditcher. He then left to take a load of corn to the elevator. During his absence the accident occurred in the following fashion. Philip ran over to the ditcher, grabbed one of the strengthening bars, and started swinging. The ditcher came down and pinned him to the ground. Philip’s 8-year-old uncle, who had followed Philip to the machine, attempted to lift it but could not. The 12-year-old aunt, who had been watering *15a tree nearby, then came and the two children were able to lift the plow from Philip.
¶7The record shows that after the accident the defendant stated to his daughter, Philip’s mother, that the accident was “senseless,” that the machine should not have been where it was, and that all that it would have taken to prevent it would have been to, in the words of Philip’s mother, “flip” the plow to the ground.
¶8The defendant asserts that the evidence was insufficient as a matter of law to establish any negligence on his part and therefore there was no jury question. He cites and relies upon Haden v. Hockenberger & Chambers Co., 193 Neb. 713, 228 N. W. 2d 883; and upon the contention that the accident was not reasonably foreseeable. In the cited case the defendant had parked a dragline adjacent to a lake or pond on land owned by it, and the plaintiff, a 17-year-old boy, was. injured when he used the dragline as a diving platform. We there affirmed a directed verdict for the defendants and said that machinery in a static condition is not inherently dangerous. That case was properly decided and clearly stated the correct principles. But we are here confronted with a completely different set of evidentiary facts which distinguish this case from that relied upon by the defendant. These are: (1) The defendant’s actual knowledge of the presence of the child and of the child’s tender age. (2) The extremely unstable character of the ditcher’s position. (3) The defendant’s knowledge of the machine’s characteristics and its proximity to the area where the child was playing. (4) The inviting (to a small child) character of the strengthening bars when the blades were in the elevated position. (5) The relative lack of utility in positioning the blades in the elevated position and the ease with which the position could be changed to a relatively safe one.
¶9An examination of the holdings of numerous courts that have had occasion to define the duty to a child of a possessor of a chattel that is likely to tip or fall in*16dicates that key factors to be considered are the tender age of the child, the unstable characteristic of the chattel, and the known presence or the likelihood of the presence of children and their inability to appreciate the hazard because of tender age. See the following authorities: Kopplekom v. Colorado Cement Pipe Co., 16 Colo. App. 274, 64 P. 1047 (top-heavy cement pipe standing on side); Morse v. Douglas, 107 Cal. App. 196, 290 P. 465 (two-wheeled iron tar vat easily tipped); American Ry. Express Co. v. Crabtree, 271 F. 287 (heavy iron wheel leaning precariously); Jorgenson v. Crane, 86 Wash. 273, 150 P. 419 (mobile two-wheel scraper on school grounds); Reichvalder v. Borough of Taylor, 322 Pa. 72, 185 A. 270 (mobile four-wheel scraper near playground); Allen v. Silverman, 355 Pa. 471, 50 A. 2d 275 (heavy metalic cylinder movable by the slightest jar, located on slope); Bergman v. Feitelowitz, 278 N. Y. 620, 16 N. E. 2d 127 (heavy, not fastened down, stone pot).
¶10It is my view that reasonable minds might draw different inferences as to whether the defendant ought to have foreseen the possibility of accident and injury under the evidence in this case. Where reasonable minds may draw different conclusions from the evidence, it is within the province of the jury to decide the issues of fact and on review the Supreme Court may not set aside the verdict in such a situation. Libbey-Owens Ford Glass Co. v. L & M Paper Co., 189 Neb. 792, 205 N. W. 2d 523.