This action was brought originally in the Hancock Common Pleas by Leonard Yazell as personal representative of a deceased 5 year old child, against the city of Findlay for damages resulting from the child’s death.

The petition charges the defendant with negligence causing the death of this child, and the facts stated are substantially as follows: The city in its proprietary capacity purchased and owns a tract of land locally known as iRverside Park, established and maintained as _an amusement park which the public, including small children, were invited to visit.

On the same premises, the city constructed an impounding reservoir as an adjunct to its water supply, another of its proprietary enterprises. This reservoir was constructed upon an elevation some ten feet above the park level, with no covering over it and nothing in the way of obstruction, to prevent children, climbing this attractive elevation, from falling into the water, the presence of which water at the top of the elevation was not observable until the top was reached.

The only protection afforded to children vsiiting this amusement park from the peril incident to the reservoir, was a wire fence around the elevation at the park level, which fence never was, in its plan of construction, adequate to keep small children from passing through it, but it had become out of order, to the knowledge of the defendant, so that children found no practical obstruction to their passage to this elevation.

In this perilous condition, plaintiff’s intestate, a boy of about five years of age, visiting in the park, climbed this elevation and fell into this reservoir and was drowned.

The Common Pleas sustained a demurrer to the petition and this judgment was affirmed by the Court of Appeals on the ground that the facts stated did not show a cause of action.

The Administrator, in the Supreme Court, contends that the defendant having control of the whole premises, was under a legal obligation to use ordinary care to protect small children visiting this amusement park, from the peril incident to this invisible body of water, and that it is a question for a jury, under proper instruction from the Court, whether upon these facts, such ordinary care was exercised; and that the Court erred in sustaining the general demurrer, and holding as matter of law that the defendant owed no such duty, and hence was not liable for this death.