*1 593 “In we uplift anguish unhallowed song;
A new is to the swift; The race strong.” The battle vigor to the plaintiff one can restore No enjoyed he prior of limb health and sturdiness his but the jury sitting of July night offer $35,000 would concluded that a verdict of case next thirty years him for the assuring compensation be otherwise not the necessities of life which might vouchsafed. it like a deal of great money sounds
$35,000 —and package sized good is. Looked bulks into closely, considerably. over it thins out spread years thirty And when it then, passes wringer through day inflation the shrinks more package even present expenses all the considerably. Considering additional be be- inevitably subjected to which will X-rays cause forced medication, treatment, rests, costs disburse- the amount after accrued remaining limps span be none too much he across'the ments, life left fast- years him arduous little time century twentieth which has moving cripples. affirm of $35,000. I would the verdict Railroad Della Porta, Pennsylvania Appellant, Company.
Argued April 1952. Before C. Drew, Stern, J., Chidsey Stearns, Jones, Bell, JJ. Musmanno, him Michael A. Spatola, Sheldon W. Farber, for appellants. Raeburn
Thomas Raeburn him Thomas White, with White, appellees. Jr. and Williams & Scott, White,
Opinion May by Allen M. Mr. Justice Stearne, 1952: court
This is an from the refusal of a appeal at the banc to take off a entered compulsory non-suit by trial of trespass. brought an action in suit and by his father minor, through as guardian, damages minor’s in their own to recover parents right, personal the child injuries sustained *3 Philadelphia ladies’ North at the Station lounge the Railroad Pennsylvania Company. square feet twenty
Such is lounge approximately wall. mirror on one about feet wide has three wide, On mirror feet either side of the is a window six wide feet and one-half steam radiator about five 5, On November directly in front each window. the entered the Eleanor Della 1948, mother, Porta, old year one-half her five and lounge accompanied by the old year son, and her one and one-half nephew but minor radiators were plaintiff. heated, The mild. open because the weather windows were she mirror, While into the looking female ob- “Look at the train” heard nephew say her at- her her child. She directed up served him picking until heard she tention to the mirror momentarily, him and snatched She then turned infant scream. placed the older child had from the where radiator, trains. the passing him so that he view might bare burned severely of the child’s legs tender flesh radiator. of contact with the short period during contained liability is theory entire Plaintiffs’ book: “The radiator paper in statement in in the time of was both question, accident, actually legal contemplation highly dangerous instrumentality.” allegation There they were any way only radiators defective — were hot. The picture offered evidence shows they were cast-iron and counsel ordinary radiators, admitted orally that much like the radiators were in the room in which this Court heard oh argument No reason case. has been should we suggested why permit submission of
nature of these
pre
to a
radiators
unless we
pared to rule
matter of
law
countless
thousands of steam radiators
heat
which
homes, schools,
hospitals,
con
churches, offices,
may
courtrooms
stitute dangerous
ap
instrumentalities.
Counsel
pellants have cited
many cases
which dangerous
instrumentalities
have been found to
exist,
significant
that none presents a factual
situation re
motely
to the one at bar.
In Farbarik
Jones,
similar
597 Howlett that strenuously most argue Plaintiffs E.N. 256 Mass. Dorchester Trust Co., all in which in the United States “the decided only case case the all fours are on with facts controlling year her two plaintiff placed In that at bar.” case, pro mahogany topped bench, “upon smooth, old son the coming to for use those the defendant vided by feet to from inches two eight which stood premises, at then to heated vapor from a away heating radiator, degrees hundred Fahrenheit, least two twelve the anyone upon in from contact with guarded any way the to her attending banking, bench.” While mother was in fell onto the radia unexplained way the child some verdict jury’s tor and In sustaining was burned. “It remains court said: the Massachusetts plaintiff, defendant’s the negligence decide there was whether although and, close, part, existing say it for the evidence was whether unguarded combination of bench and radiator The distinction reasonably (emphasis supplied) safe.” felt bank the Massachusetts court that is obvious: someone that anticipated possibility- have should onto the hot radiator. from smooth bench might slip not feel that defendants herein bound We do were would contact anyone deliberately anticipate isolated from the furniture radiator which was child place room that one would another contact It is radiator. this connection significant with such did not anticipate any that female such action her nephew lifting she observed the child although look the train. him to telling are not aided at all by testimony Plaintiffs children mothers to take customary small into The more lounge. argue them they children to customary for be the more it was present, children invariably demonstrate such were *5 personal custody supervision the immediate and under Company The Railroad not adults. bound to protect against they the children a condition which expect reasonably parents could their adult to discover. controlling authority Since no has us been cited to by or our discovered own we research, must decide as a impression ordinary of first whether or an radiator can be steam considered a instru- mentality. properly suggest Plaintiffs Restatement, appropriate possessor as the §343, “A Torts, standard: subject liability bodily is land to harm to caused by business visitors natural or artificial condition (a) thereon he if, or if, the exercise knows, of reasonable care could discover, which, condition involving if to known he should realize him, an (b) risk to them, unreasonable and to has reason they believe discover the condition or realize (c) permits the risk involved therein, invites or them to enter or remain the land exer- without cising (i) reasonable care to make the condition rea- sonably (ii) give warning adequate to safe, relinquishing enable them to avoid the harm without of the services which if entitled to receive, possessor public utility.” is a long The steam radiator has so been common society every person charge- in our fixture adult is knowledge able with that it must be hot order purpose “dangerous”. its serve that extent upon keeping risk is attendant Whatever a radiator necessary hot is not “unreasonable risk” but ais heating concomitant to the function which serves justified by utility. its complain judge Plaintiffs further trial erred excluding expert testimony might on methods which used to make the have been installation safer, respect custom thereto. The court below learned
599
occasion
no
there was
concluded
properly
“circumstances
because
evidence
admitting opinion
bearing-
to the
be described
here could
special
without
by persons
estimated
the issue
on
Pennsylvania
v.
Magyar
See
training.”
or
knowledge
v.
Delair
Judgment by Opinion Dissenting Mr. Musmanno Justice : 212° The boils at Fahrenheit. evidence Water the radiator on the minor case reveals which this injured temperature functioned of 212° instead of the defend- If, Fahrenheit. radiator, an of open had maintained vat boiling ants water, water a child had been scalded from the escaping there could be no vat defendant’s Nor would doubt anyone negligence. defendant’s for burns if incurred child had responsibility against brushed outside of the vat. simply boiling fact the boiling The instead of water, in an hissing in cast iron did not tubes, seethed reduce open vat, nor of the water decrease the temperature danger if one came into contact with the tubes. burning which will inflict third degree A burns temperature to the where the flesh becomes legs point a child’s instrumentality containing and adheres shredded temperature burn a man’s that heat is such 600 part body might
hand other of his which come into contact it. appalling agency
The fact that heat
is contained
commonplace
so
article as a radiator does not
modify
potentialities
inflicting
alter or
its inherent
peril.
injury
existing
serious
those unaware
duty
carrier
common
invitees
towards its
highest
is one
short
insurer.
care,
Pittsburgh Rwys.
Dayen
Archer v.
Pa.
Co.,
547;
*7
Penn Bus
Counsel
injury
the act
proximate
“that
cause
child
radiator.”
placing
older
if the
instrumentality
inherently dangerous,
But
from responsibility
railroad would
be absolved
impulsive thing.
immature
child did an
because
Roberto
not an
incident
intervening
The act of
eliminated
proximateness
planted
which
cause
the installation
of a
by the defendant
device
through
*8
injured
to children.
inherently dangerous
Renato,
a
one and
half
who
boy
years old;
placed
Roberto,
old.
five and
years
on the
a half
Renato
radiator,
desire
the infant
his
instinctive
of
Roberto to have
The
exciting
infant Renato share with him the
little cousin
train caused him
of a
to commit
spectacle
passing
and
The combined
of a
a
performance
act.
five
heedless
old
a
and
old child and
one
a half year
half years
mature
more
not total
to a
up
reflection,
child does
produce
can
three-year
thought
olds
than ten
person.
a thirty year-old
of
responsibility
this
not
in
Contributory
course,
negligence,
one
only question
The
before us is
all.
case at
that respect
in
we must view
cause,
proximate
a
one infant
on to
light
climbing
situation
a
toddling
radiator or another
infant
scalding
np
radiator. Neither one conld be
scalding
charged
anticipation
view
consequences, especially
excitement which
instinctively attracted them
window.
“
far back
As
as 1903
Court
said:
‘Children,
wherever
must be
go,
expected to act
childish
upon
instincts
others who are
impulses;
chargeable with
a duty of care and caution toward them must calculate
”
take
Rachmel
this,
precautions accordingly.’
v.
Appellees’ counsel stated “But as- brief: that defendants can be suming anticipate held to a very child young may voluntarily come contact with the any child old enough to radiator, crawl from automatically pull object away hot without receiving any most a injury, or, very superficial burn.” But the facts are quite contrary. on the child was radiator for second but he sus- tained not a “very superficial but burn,” very serious third degree burns. The burns were so serious the child taken to a hospital skin two grafting In operations followed. one of addition, the child’s had to legs be to a subjected, period, plaster cast. counsel Appellees’ further argue that the defendants were no more responsible what if Roberto than did he had thrown Renato from a window. This bizarre illustration all. analogous at Casting child from a window would certainly not involve the railroad a child placing upon a company, radiator scalding maintained defendant company real produces a *9 of fact as question to liability.
I do not agree with the opinion that majority perforce radiators must be declared innocuous because can be found homes, courtrooms, hospitals, and offices. Carpets churches and schools, chandeliers are also to he hospitals found and but homes, offices, they unfortunately inflicting have been the cause of human injury beings. serious utilitarian most object under certain can, circumstances, become We all agency. occasionally know carpets chandeliers fall, stoves blow furnaces slip, up, pipes gas water tubes crack, burst, as and, leak — people injured. Did the consequence, owner which was the agency proximate cause of the injury care exercise reasonable under circumstances is always the case? That question, that will always be the so question long juries courts and pass which harass upon problems and distress human race.
I do not maintain that de- negligence of the in this case fendants was established conclusively, the unique I do circumstances which brought say injury helpless about serious infant formed to the jury issue submission under in- appropriate from the court. This case structions should not have from away taken the jnry. been A factual removed issue is from a considera- jury’s tion reasonable only when minds cannot differ on the inferences out facts. arising The decisions of our and the appellate appellate courts of courts, other all declare that proposition states, uncompromisingly. when guided by two the same Therefore, minds, compass at the same looking can honesty, circumstances, do take different courses of two thought direction, arises which must be system our settled, the unanimous decision of justice, twelve citizens That was not done in this of our Commonwealth. therefore, dissent. I, case