This action is here on petition to transfer under §4-215, Burns’ 1946 Replacement.

We approve the result reached by the Appellate Court in its opinion 108 N. E. 2d 273. However, we do not approve the statement that “the allegations of the first paragraph of amended complaint are sufficient to present a question of fact as to whether appellees violated the emphasized provision of the above quoted statute.” Such “emphasized provision” being a part of § 1, ch. 161, of the Acts of 1911, p. 424, § 36-1705, Burns’ 1949 Replacement, is as follows:

“Provided, That the same shall be erected and maintained in such manner as not to incommode the public in the use of' such roads, highways and waters: . . . .”

It is our opinion that this section of the statute does not apply to a factual situation such as is presented by the complaint in this case.

*12The complaint does, in our opinion, state facts sufficient to constitute a charge of common law negligence. Transfer denied.

Note. — Reported in 111 N. E. 2d 47.