(dissenting).

The appellant, at the time of his injury, was about five years old. He and a playmate of three or four years were playing in an unenclosed and unguarded railroad lot where railroad equipment of various kinds was stored. The lot was not merely an ordinary siding upon which replacement rails were placed, as might be thought from the statement of fact in the majority opinion. It was, in fact, an unenclosed railroad warehouse. Among the material stored in it were two or more rails slightly raised from the ground by cross timbers. The rails *601 were placed parallel and quite close together, though not touching. While walking along one of these rails, young Franich’s left foot slipped from the rail and went between the two rails to the ground causing him to topple over. Two lower leg bones were broken.

The law of the state of Montana applies. The Montana Supreme Court, in Nichols v. Consolidated Dairies of Lake County, 125 Mont. 460 , 239 P.2d 740, 742 (1952), held that the requirements for recovery under the attractive nuisance theory are correctly set out in Section 339 of the Restatement of Torts.

It is recited in Section 339 that

The evidence was clear and not disputed, and the Court so found that ap-pellee knew that children were habitually playing upon the subject property.

(b) [I quote and comment upon this requirement lastly.]

This (c) requirement is present in our case, if in fact the place was dangerous, as the injured child was but five years old.

This (d) requirement is present, for the utility could have been maintained and the danger avoided by posting a watchman or by the erection of a fence at comparatively little cost, or the rails could easily and v/ithout extra cost have been placed so as to avoid the possibility of the accident in suit.

The Court, in our case, found as follows:

The undisputed facts completely negative such finding. The boy was hurt by falling from the rails. The defendant knew children played upon the lot. The undisputed facts demonstrate that they were attractive to children. At little cost and effort children could have been kept from the lot, or the rails could easily and without extra cost have been placed so that the subject injury could not reasonably have happened.

It is common knowledge that people, not alone children, find it engaging and attractive pastime to try their balancing skill by attempting to walk a rail of a railroad track. But a railroad operating track is a far different thing from two parallel out-of-use rails placed close together and inches from the ground.

Neither the railroad case nor the elevator case cited in the majority opinion is apposite.

We know definitely that the little boy in suit was attracted to the rails as they lay but a few inches apart and a few inches from the ground on wood stringers. We know definitely that the rails *602 were so placed that when the boy’s foot slipped off the rail, as we know it would do sooner or later, it was not free but went between two rails and was so caught that when the boy toppled over, his foot and leg were held rigidly and the bones snapped.

I think all four requirements of the Restatement were shown to be present, and finding to the contrary was in the face of the undisputed evidence and the demonstrated physical facts. See a full discussion of the Four Restatement requirements with citations and authorities in Harper and James, The Law of Torts, 1451 et seq. See also Sioux City and Pacific Railroad Company v. Stout, 17 Wall. 657 , 84 U.S. 657 , 21 L.Ed. 745 . United States v. United States Gypsum Co., 333 U.S. 364 , at page 395, 68 S.Ct. 525 , 92 L.Ed. 746 .

The judgment should be reversed.