Gaughan v. City of Philadelphia

119 Pa. 503 | Pa. | 1888

Opinion,

Mr. Justice Green:

There were but two witnesses who saw the accident which resulted in the death of the plaintiff’s child, and they thus describe the occurrence:

Michael Gaughan: “I am brother of the boy who was killed; brother was up on top of barrels next door on Kelley’s pavement. He caught on the awning post to save himself. He was sliding down the awning post and made a grab for it and fell. He was standing on the top highest barrel that was there, then he went and tried to get hold of the awning post and grabbed it with one hand. He grabbed the post with one hand and let go of it to have room to put the other hand on and fell. The barrel that he had been standing on fell down and he fell under it.” On cross-examination he said: “ I was sitting on one barrel and my brother who was killed was sliding down the post, that is the post between my mother’s house and Kelley’s house that he was sliding down. He climbed on the barrels to the top of the post, and then he slipped and came down again. He was on the top of the highest barrel, and when he got on to the highest barrel then he reached over to the awning post, and when he had hold of the post he wanted to get room for the other hand. He was up at the top of the post and wanted to get room for his other hand, and he slipped and fell down into the mud gutter. Q. In falling did he hit the barrel ? A. No, sir; the barrel slipped from under him, the top barrel fell down towards the gutter and he fell over this and the barrel went on him.”

Henry C. Stagg said: “I saw Johnny on top of tipper barrel. Johnny was trying to climb the pole, and he slipped and fell down into the gutter and the barrel fell on him. I saw the barrel strike Johnny right across the breast.” . . . “ At the time he fell down he was holding this way [witness indicating by holding up both hands], he was climbing up to the top, and when he got to the top he slipped off the top of the awning post and went down into the gutter, and as he went down to the gutter the barrel went down and fell on him.”

The foregoing testimony was given by the plaintiff, and it constituted the whole of her evidence relating to the actual occurrence of. the accident. Upon the merest inspection it shows that the death of her son was occasioned exclusively by his own wantonly reckless act of climbing up and sliding down an awning post, and swinging himself upon the cross rod connecting the post with the building. In the course of these exercises he lost his hold either upon the post or rod and fell down to the street below, in the gutter, and was killed. How the barrel came to fall upon him is not made clear, but it is perfectly certain that its fall was not due to any ordinary use of the sidewalk as a public highway. The probabilities are he struck the barrel in his fall and toppled it over, but it is not material, as the immediate and direct cause of the accident was the fall from the awning post. This fall was occasioned by his losing his hold either upon the post or the connecting rod.

Now, the post and rod were perfectly lawful structures, such as are in constant use in all parts of the city. To hold the city liable for the consequences of the reckless antics of all the children who choose to make these structures a means of amusement or adventurous exercise, would be establishing a rule of liability never yet heard of. The case is simply destitute of the essential element of negligence on the part of the city. It is certainly not negligence to permit awning posts and connecting rods to be erected in front of buildings so long as they do not interfere with the use of the sidewalks. Yet this permission is the only connection between the city and the immediate cause of the accident. Moreover, the principle stated in the case of Oil City & Petroleum Bridge Co. v. Jackson, 114 Pa. 321, is directly applicable. The boy was in a place where he had no right to be. The awning post and connecting rod were not designed for the use to which he was putting them. He had no occasion of any kind to be there, and his being there at all was a source of manifest and imminent danger. In the Bridge Case above referred to the boy was on the bridge and crossing it, which he had a right to do. The means of his death was an open space at one side of the roadway, hut in the floor of the bridge. He did not choose to use the roadway which was perfectly safe, but walked on an iron pipe which was over the opening in the floor, and while doing so he fell off the pipe and through the opening and was killed. We held the bridge company to be free of liability because the pipe was not intended for use as a passage way, the boy had no right to use it for such a purpose, and the roadway provided was amply sufficient and entirely safe. In the present case the facts are far stronger against liability of the city, because the structure was in no possible sense a part of the highway and was not designed in any circumstances for the use to which it was being put when the accident occurred. The presence of the barrels on the sidewalk was not the cause of the injury, and the fall of the top barrel would have been harmless if the boy had not already fallen into the gutter by losing his hold upon the awning post or connecting rod.

Judgment affirmed.