The opinion
WESTHUES, Judge
(dissenting).
The principal opinion in this case follows the ruling made in a companion case, Anderson v. Cinnamon, 282 S.W.2d 445 , decided by this court en banc in September, 1955. I have no fault to find with the portion of the opinion which holds that Don Nastasio, who lost his life, was at the time acting as a fireman and not as a ‘Volunteer in the discharge of a rescue mission. In Anderson v. Cinnamon, supra, this writer prepared a short dissenting opinion. The only purpose of my dissent in the present-case is to -point out more specifically my reasons for dissenting. The majority of the court has ruled and I do not wish to, and should not, continue to dissent. I shall not do so in the future but I have a‘hope that some day a majority of .the court may reclassify the status of a fireman.
I am mot convinced that a fireman should be classified as a licensee. The shoe does not fit. In case of a fire, the owner of the property, unless he is an arsonist, welcomes no one more than he does the firemen. The fact that it is the duty of the firemen to go upon the premises to fight the fire does not make them less welcome. As to the status of firemen, whether they are invitees or licensees, see Shypulski v. Waldorf Paper Products Co., 232 Minn. 394 , 45 N.W.2d 549 , loc. cit. 551(2). The case holds firemen do not belong, strictly speaking, to either class but are sui generis.
It is not my opinion that an owner of property should .be liable in damages to a fireman when injured by encountering the usual risks in performing his duties. But I am of the opinion that an owner of property should be held liable to a fireman injured as a result of an unusual, hidden dan *122 ger of which the owner had ’ knowledge coupled with the opportunity to warn. In the Anderson case, 282 S.W.2d loc. cit. 447, 448(3, 4), this court held that even to licensees, the owner owes a duty to warn of the existence of an unusual hazard. Note what the court said: “Thus it is unusual hazard that requires warning to licensees. Harmful chemicals, explosives and other inherently dangerous materials developed by modern science and industry, no doubt, would be within this rule at least under circumstances where ‘licensees could not be expected to know of their presence or effect.”
Is not a porch at the third floor of a building which is so defective that it would not bear the weight of a man, an unusual hazard? The petition in this case and in the Anderson case stated that the owner had knowledge of the defective condition of the porch and that he was present on the premises at the time of the fire; that he had the opportunity to give timely warning and failed to do so.
I am of the opinion that whether the defective porch was or was not an unusual hazard was a question of fact for a jury. And so was the question of whether the owner could have given timely warning a question for a jury.
In the Shypulski case, 45 N.W.2d loc. cit. 553, the court said, “Certainly, no meritorious reason can be advanced to justify the view that a property owner, with knowledge of a hidden peril, should he allowed to stand by in silence when a word of warning might save firemen from needless peril. The burden of a duty to warn of hidden perils falls ligiitly upon the landowner in comparison with the cost of his silence, which is frequently measured in the lives and limbs of firemen and in the sorrow and suffering of their families. Although firemen assume the usual risks incident to their entry upon premises made dangerous by the destructive' effect of fire, there is no valid reason why they should be required to assume the extraordinary risk of hidden perils of which they might easily be warned. Two courts at least have held that firemen-do not assume such risks, and, for the reasons already stated, we regard that holding' as sound. Smith v. Twin State G. & E. Co., 83 N.H. 439 , 144 A. 57 , 61 A.L.R. 1015 ; Campbell v. Pure Oil Co., 194 A. 873 , 15 N.J.Misc. 723.”
For the reasons stated above, I respectfully dissent.