72 Pa. Super. 502 | Pa. Super. Ct. | 1919
Opinion by
' The assignments of error are confined to the court’s refusal: (1) to give binding instructions in favor of the
The learned counsel for the appellants contends that the case should not have been submitted to the jury because, (1) there was no evidence of negligence on the part of the defendants, (2) the child was not on the defendants’ premises at their invitation.
(1) The child was killed by six heavy boards or planks falling upon her from off a large lumber pile, while she was walking or running alongside. According to the testimony of the plaintiffs’ witness, who was the only person who saw the accident, she was not climbing up the pile, or running on it, or doing anything to cause the lumber to fall. The boards had been thrown, not laid, on top of the pile the same day that the child was killed, by workmen of the defendants, who were loading lumber on a wagon and in this way disposed of the inferior pieces. In addition, the boards in this pile had no strips or crosspieces to tie or hold them together, although the defendants themselves testified that lumber of this character should be piled solid and stripped every eight ,or ten courses. The planks were of a size and weight sufficient to crush this child to death and to kill or seriously injure any person passing by upon whom they might fall from their elevated position, and if they were thrown carelessly and insecurely on top of the pile instead of being solidly laid, and if the pile was not stripped at all instead of being tied together every eight or ten courses, so that the boards were likely to topple off, it can scarcely be con
(2) It must be admitted that there was no evidence that the defendants had invited children to use this lot as a playground. The learned trial judge left it to the jury to find whether the yard had been so used with their permission and consent. There was evidence that it had. Witnesses testified that for twelve or fifteen years continuously prior to the accident the yard had been used as a playground by the children of the neighborhood, without objection on the part of the defendants. It was unenclosed and entirely open on three sides. One of the plaintiffs admitted that when workmen would come to the yard two or three times a week, to load or unload lumber, they would chase the children away, but in view of the other testimony, this might readily be understood by the jury to apply only during those operations and not to the use of the yard at other times or after working hours. The defendants denied that the yard had been used as a playground with their permission and consent and averred that everything in reason had been done to warn the public that children were not permitted to play there, but, as before stated, this conflict of testimony was for the jury.
The learned counsel for the appellants contends, however, that this was not sufficient; that it was necessary in order to hold the defendants responsible in this action, to prove an invitation on their part to use the yard as a playground; that a child there merely by the tacit permission or consent of the owners had no higher rights than a trespasser and could recover only for wanton or intentional injuries. A review of the decisions shows that in some of them, a licensee, or one who is on the premises of another, merely by sufferance or permission, is classed as respects injuries he may receive thereon, as a trespasser and without recourse against the owner, unless the injuries were wantonly or intentionally inflicted:
In Curtis v. DeCoursey, 176 Pa. 446, Mr. Justice Fell, in speaking of mere licensees, said the owner of the yard owed them no duty in respect to the safety of the premises, except as to “unexpected or secret dangers.” In Weaver v. Carnegie Steel Co., 223 Pa. 238, Mr. Justice Moschziskbr said that licensees assumed ordinary risks of getting hurt while upon the premises of the licensor or host, but not extraordinary risks. In Hagan v. Delaware River Steel Co., 240 Pa. 222, the same distinguished jurist makes a distinction between a trespasser, who takes all risk of injury except such as are wantonly or intentionally inflicted, and a licensee, as to whom the owner of premises may be liable for negligence (p. 227). In Guilmartin v. Phila., 201 Pa. 518, where a boy ten years old was hurt in an unfenced lot, used without objection as a playground, while he was climbing up a rusty iron gate, which would have been safe if used in the ordinary way, it was held that there could be no recovery as the city was not required to anticipate or guard against injuries to children which might result from the improper use of objects safe in themselves, but the whole reasoning of the opinion shows that the ruling would have been otherwise if the gate had been so insecurely hung that it had fallen on the child of its own weight, and without fault on his part, while he was playing in the lot with the tacit consent of the city authorities. In Henderson v. Refining Co., 219 Pa. 384, where a child seven years old was killed by being caught in dangerous machinery left unguarded in a lot used for a common and permitted to be used as a playground for children, it was held that he was not to be regarded as a mere trespasser and that the defendant was liable for its negligence. In Millum v. L. & W. Coal Co., 225 Pa.
It is said in Millum v. L. & W. Coal Co., supra, that the dividing line between the principle upon which Thompson v. B. & O. R. R. Co., 218 Pa. 444, was based and that upon which Henderson v. Eefining Co., 219 Pa. 384, stands, may be a narrow one, but the distinction in principle may be readily traced. Whether all the decisions can be reconciled with each other, is not certain; the pendulum swings pretty far in one direction and then back pretty far in the other. But most of the apparent inconsistencies disappear when the facts of the several cases are inquired into. As was said in Euling Case Law, relative to a conflict of authority on a similar subject: “Liability is to be determined with reference to the facts of each case and the comparative knowledge of the parties as disclosed thereby. It is a mistake to assert that there is any absolute rule or doctrine that must govern every case of injury from particular places or appliances, and with this in mind it is no more difficult to harmonize the class of cases in question than any other class that depends upon facts and the view taken thereof by judges and juries,” vol. 20, p. 82.
The decisions of this State relied upon by the appellants were for the most part cases where the injured child was an absolute trespasser: Leithold v. P. & R. Ry. Co., 47 Pa. Superior Ct. 137; Rogers v. Lees, 140 Pa. 475; or where there was no negligence on the part of the defendant in the maintenance of his premises apart from the improper or unauthorized use by the child or some third person of the same, or of the appliance which caused the injury: Gillespie v. McGowan, 100 Pa. 144, B. & O. R. R. Co. v. Schwindling, 101 Pa. 258; Thompson v. B. & O. R. R. Co., 218 Pa. 444; Guilmartin v. Phila., 201 Pa. 518. They would be controlling here if the boards had
The judgment is affirmed.