¶1(concurring in part; dissenting in part). The parties apparently waived trial by jury and the questions of fact were decided by the trial judge. He made a finding that the stadium is as safe as the nature of the premises will permit without interfering with the enjoyment of the game. It must be conceded that it was possible to have constructed a net which would have made it safer for plaintiff. What the trial judge did was to determine that the erection of a net for greater safety would unreasonably impair the enjoyment of watching the game — the purpose for which the stadium exists. I think this is a proper question of fact under the safe-place statute and that the finding of the trial court can be sustained. Such finding would not, however, be binding upon a jury or judge in a case brought by a different plaintiff.
¶2The majority of this court has concluded as a matter of law that even if defendants’ failure to erect a net were deemed a violation of the safe-place statute, plaintiffs contributory negligence would be at least equal to the negligence of de*87fendants. I must respectfully disagree with that conclusion. In my view the question of plaintiff’s negligence and comparison with that of defendants would also be an issue of fact, to be decided by a jury, or by a judge if trial by jury be waived.