1. A property owner is under a duty to exercise reasonable care to prevent injury to a licensee or trespasser who is actually known to be or may reasonably be expected to be "within the range of a dangerous act being done." Mandeville Mills v. Dale, 2 Ga. App. 607, 609 ( 58 S.E. 1060) (1907); Murray Biscuit Co. v. Hutto, 115 Ga. App. 870 (1), 872 ( 156 S.E.2d 132) (1967) and 119 Ga. App. 377, 381 ( 167 S.E.2d 182) (1969); Huddle House v. Burke, 133 Ga. App. 643, 648 ( 211 S.E.2d 903) (1974). See Fotopoulos v. Lamas, 123 Ga. App. 731, 732 ( 182 S.E.2d 326) (1971); Patterson v. Thomas, 118 Ga. App. 326 ( 163 S.E.2d 331) (1968).

Construed in favor of the Rubios, the evidence shows a duty on the part of Wood and Davis to exercise ordinary care, independent of the theory of attractive nuisance. In Murray Biscuit Co. v. Hutto, 119 Ga. App. 377 ( 167 S.E.2d 182) (1969), a small child was injured by a conveyor under very similar circumstances. The child's mother was an employee of defendant and brought the child into the defendant's factory despite an "employees only" sign, believing that the defendant allowed children in the factory despite the sign.

Where the trial court is unable to conclude as a matter of law whether or not a special relationship existed, it properly becomes a factual question for resolution by the jury along with other negligence issues. See Murray Biscuit Co. v. Hutto, 119 Ga. App. 377, 385-386 ( 167 S.E.2d 182) (1969) (question of fact as to whether plaintiff stood in relationship of trespasser or licensee). After Kramer was identified by the Feises' daughter and a neighbor's daughter and arrested on peeping tom charges, he was released from custody the same day.

Despite conflicting evidence on the issue of the nursing home's policy and practice toward having children of the employees on the premises, the trial court determined that plaintiff was at most a licensee. This determination appears to be based upon the decision of this court in Murray Biscuit Co., Inc. v. Hutto, 119 Ga. App. 377 ( 167 S.E.2d 182). Plaintiff contends that she was on the premises as an invitee, arguing that her being at the nursing home on the day of her injury was of some economic benefit to the corporation.

The injured boy, Burke, had been told by the manager of the defendant and in the presence of both Murphy and the waitress (he had been found washing dishes behind the counter by the manager) not to go behind the counter and that no one but employees were permitted behind the counter. This was no mere sign containing a rule or prohibition which the boy may or may not have read ( Murray Biscuit Co. v. Hutto, 119 Ga. App. 377 ( 167 S.E.2d 182)) and when he, at the invitation of his cousin, Murphy, went behind the counter he did so knowing that this was in violation of express instructions from the manager, not only given to them but given to him. This is decidedly different from cases where one is injured not knowing the servant is violating instructions, as was the case in the example given in Summers v. Barron, 59 Ga. App. 202, 210 ( 200 S.E. 228).

Also see Burton v. Western A. R. Co., 98 Ga. 783 ( 25 S.E. 736) and Central of Ga. R. Co. v.Ledbetter, 46 Ga. App. 500 ( 168 S.E. 81). If the plaintiff was not, as a night watchman on the premises, an invitee, he was at the very least a licensee whose presence would be anticipated, and "it is usually wilful or wanton not to exercise ordinary care to prevent injuring a licensee who is reasonably expected to be within the range" of a dangerous instrumentality. Murray Biscuit Co. v. Hutto, 119 Ga. App. 377, 386 ( 167 S.E.2d 182), and see Patterson v. Thomas, 118 Ga. App. 326 ( 163 S.E.2d 331). As to Division 4, I agree that the charge on assumption of risk was correct as given. To assume a risk of danger involves volition — the decision to take the risk after it is known, not simply negligence in failing to take precautions by means of which it could have been discovered.