179 A. 561 | Pa. | 1935
This action of trespass was instituted by plaintiff to recover damages for the death of his minor son. From the entry of judgment for defendant upon an affidavit of defense raising questions of law, plaintiff appealed.
The statement of claim avers that defendant owned, maintained, and controlled the William Penn School in North Scranton. There was a fifty-foot flagstaff in the school yard, the base of which was about twenty-eight feet from the sidewalk of Clearview Street, on which avenue the school property abutted. On October 12, 1934, at about 4:30 P. M., plaintiff's son, while on the sidewalk, was killed when the upper portion of the flagstaff snapped off and fell, crushing the boy beneath it. It is alleged that the falling of the flagstaff was due to its defective, rusted, and weakened condition; that this condition had existed for over six months; and that defendant was negligent in not having it replaced or repaired. The court below entered judgment in favor of defendant on the ground that this was a case of tortious liability and a school district is not liable for injuries caused by the negligence of its directors or employees.
Plaintiff concedes that "a school district is a state agency, performing governmental functions, and while acting within the legitimate scope of these duties, is, generally speaking, not liable for negligence in connection therewith." Illustrative of this well established rule are: School Dist. v. Fuess,
It is unnecessary to consider whether the maintenance of an undoubted nuisance would, in the event of injury resulting from it, subject a school district to liability, for the allegations of the statement of claim aver a breach of duty that cannot be distinguished in principle from other trespass cases in which pleas of immunity by school districts have met with judicial acceptance. The characterization as a "nuisance" of the situation presented in the statement of claim is warranted only on the theory that every negligent act of omission or commission is a nuisance. Whether or not a given set of facts constitutes a condition which in law is a nuisance is sometimes a question not free from difficulty. "While it may be easy to draw the line between what is and what is not a nuisance, . . . it is by no means so easy to determine whether the circumstances of any particular case ought to place it on one side or the other of that line. It is rare that any number of men will be found to agree in their judgment upon such a question": Wier's App.,
There is no merit in plaintiff's contention that the erection and maintenance of the flagstaff was not a part of the defendant's governmental functions. The legislature commands the display of the United States flag on a flagstaff "upon or near each public school building in clement weather during school hours. . . ." *420
Paraska v. Scranton,
The judgment is affirmed.