37 A.2d 432 | Pa. | 1944
Lead Opinion
This case arose out of the facts of a particularly sad and distressing accident. It is a combined action of a *280 personal representative, Irwin Savings Trust Company, brought to recover damages for the estates of four minor children of one family, ranging in age from about three to eight years, and also damages for their parents, because of the drowning of the children in a pool of water partly upon property of defendant and partly upon property of an adjacent owner, which had been formed by the diversion of the waters of a small stream by the failure of defendant to keep open a culvert beneath its track.
At the trial, binding instructions for defendant having been refused, the case was submitted to the jury and verdicts were returned for each of the minor's estates and for the parents. Upon refusal of motions for judgment n. o. v. and a new trial and the entry of judgments on the verdicts, defendant took these appeals.
In considering the motions for judgment n. o. v. we will view the evidence in the light most favorable to plaintiffs, as we are required to do while considering a motion of this kind:Anstine v. Penna. R. R. Co.,
The scene of this tragic accident was a very rural section of Little Sewickley Creek Valley in Westmoreland County. About 1890 defendant made a survey there for a single track branch line, and shortly thereafter the line was built; an embankment about 18 feet in height was filled in between low ground or marsh land and Little Sewickley Creek. A three-foot stone and pipe culvert was placed to carry a small sulphur stream under the track, and it was located about 400 feet from the lower end of the marsh. For many years this low ground was swampy with water in varying amounts, more in winter than in summer, but never amounting to much. About two years before this accident, the culvert became blocked by debris which had flowed into it, and the water which should have passed through it was diverted and flowed back over the low ground or marsh and formed a pool about 250 feet in length, about *281 90 feet across at its widest point, with a depth of 10 to 12 feet toward the center. This pool was plainly visible from the railroad track and defendant's foreman, whose duty it was to keep the culvert open, passed this place many times in the two years before the accident but did nothing to remedy the condition. There is no doubt defendant knew, or should have known that the culvert was closed for a long period of time, and that the water that should have gone through it had formed a large pool on its land and that of an adjacent owner. That defendant was negligent in not opening the culvert and releasing the water, is conceded. That such could be done and at small cost is admitted.
The Kustro family lived on a farm south of the valley, distant about 500 feet from the pool. There are a few other houses close by, one on adjacent property occupied by Mike Montecupo. There was testimony that a number of children played around the pool in the summer and on the ice in the winter.
On Sunday, March 23, 1941, the Kustro children were invited to play on the Montecupo property and they were there with John Montecupo, the neighbor's boy, nine years of age, when they decided to go to the pond. His testimony follows: "Q. What did the children do? A. Went straight on the ice. Q. What were they doing? A. There was a kite up a tree with a string coming, there was a string — Q. Where was the string? A. The string was on the pond. Q. What did they do? A. Yunko took hold of the string. Q. Yunko, that is Johnny, Jr.? A. Yes. Q. Then what happened? A. Then the string broke, then they was walking up around like by the string and Mary fell in. Q. Where did Mary fall in? A. About almost in the middle. Q. Was there ice on there at that time? A. Yes. Q. Then what happened to Mary? A. Then Yunko wanted to go after her, he went; Peter wanted to go after him, he went. Anna fell in — I mean I called her. She said she was going to jump too so she went. Q. You called her? *282 A. Yes. Q. Why did you call her? A. I didn't want her to go in. Q. What did she do? A. She jumped in. Q. Did they come up again? A. No. Q. Then what did you do? A. I went up to my dad." The mother testified: "Q. On this Sunday afternoon did you know that the children were playing with a kite? A. Well Mary, she was home, she had a kite at home. Q. She did have a kite at home? A. Mary had a kite but Junior didn't have any and he was trying to make one. I was in bed, I seen him through the window, he had a butcher knife and he was trying to make one but he couldn't make it."
When the accident was reported help was summoned and the bodies of the children were removed from the water at a point where the depth was ten or twelve feet. It was testified that the string of the kite was fastened "tight on the hand" of two of the children.
The children were not trespassers, they had a right to be on the Montecupo property, having been invited there by the tenant. But owner and tenant testified they had not given defendant any permission to place the pool on their land, and it must be conceded that defendant was a trespasser in so doing. This case must not be confused with those where the injured person is a trespasser on property of another who causes the injury. But even if the children were trespassers, "The defense of no liability for injury to a trespasser is personal to the owner of the premises trespassed upon; it does not inure to the benefit of strangers to the title, adjoining owners, or other trespassers": Fitzpatrick v. Penfield,
The so-called "playground" or "attractive nuisance" cases likewise have no application here. This is obvious because the children were not upon defendant's premises. In the former the use of private grounds by trespassing children must be such as to cause the place in the immediate vicinity to be generally known as a recreation center: Prokop v. Becker,
It is strongly urged the case should not have been submitted to the jury. The record shows that there is not a particle of conflict in the evidence and therefore we are bound to conclude that the question of proximate cause was for the court. Where it is alleged that an injury arose from negligence the question of the proximate cause is to be decided by the jury upon all the facts of the case, but where the facts are undisputed, and the intervening agency is manifest, it is not error for the court to withhold the evidence from the jury: Hoag v. LakeShore Michigan Southern Railroad Co.,
Defendant's principal contention is that it could not have been reasonably anticipated or foreseen that its failure to keep its culvert open would result in this unfortunate accident to these children while playing with or chasing their kite. Unless such action by defendant was the proximate cause of the accident it is not liable in damages. We said in Hoag v. LakeShore Michigan Southern Railroad Co., supra, p. 298: ". . . in determining what is proximate cause, the true rule is, that the injury must be the natural and probable consequence of the negligence — such a consequence as, under the surrounding *284
circumstances of the case, might and ought to have been foreseen by the wrongdoer as likely to flow from his act." And in Rugart v. Keebler-Weyl Baking Co., supra, we approved the following language of the learned court below, p. 413: "Without attempting to define formally what is meant by the term 'proximate cause', we may safely affirm, in the case of a tort, that, in order to fall within this category, an act must be such as will probably result in harm, and that a cause is regarded in law as remote if an injury complained of was an unlikely or improbable consequence thereof." The test is whether the injury or death would probably result from the act of omission or commission; not whether it may result. In Pass.Ry. Co. v. Trich,
It is too much to suppose that a prudent man, of ordinary intelligence, exercising due care, and with the responsibility that was upon defendant, could have anticipated and foreseen this unfortunate happening. It would be impossible for anyone to visualize the actual occurrence, the children running out upon the ice in pursuit of the kite, of the catching of the kite in the tree near the center of the pond, the breaking of the string which was held by two of the children, of the efforts of the children to get the kite and the string, and the giving way of the ice and the tragedy that followed. *285
In a somewhat analogous situation it was held in NationalMetal Edge Box Co. v. Agostini, 258 F. 109, 111, that the company was not liable for the death of a five-year-old boy, who, when playing on the roadway, as was customary and known to the company, threw a stick upon the ice in a canal under the company's control, and while attempting to recover it was drowned. There it was said: "The decedent was not moved by temptation, if any, offered by the ice upon the canal or its attractiveness to play thereon, but by his wish to recover his 'nipsie' [a stick sharpened at one end]. Therefore we need not consider what effect might be given to a situation where children have played in the neighborhood or upon the canal and without objection from the plaintiff in error, or occasions when they have sometimes been ordered away. . . . The temptation, on this occasion, to leave his place of play, and to run out upon the ice upon the canal to recover his plaything, can in no sense be said to be either due to an invitation or a nuisance which attracted children."
While it is conceded by defendant that its failure to keep open the culvert was negligence, yet the evidence here conclusively establishes that that omission was but a remote cause of the accident. The act of the children themselves in chasing their kite over the ice was the direct, proximate cause of the accident. All defendant could possibly have foreseen from its diversion of the stream was that the water might run over on the property of the adjoining owner. This conclusion is supported by a long line of cases in our own jurisdiction, some of which are as follows:
In Hoag v. Lake Shore Michigan Southern Railroad Co., supra, an engine of defendant railroad ran into a landslide, was thrown off the track, oil cars exploded and the oil took fire; the burning oil was carried down a creek, then swollen by the rain, for 200 feet and set fire to plaintiffs' property. In holding that defendant was not liable this court said, p. 298: "The probable *286 consequences of the collision, such as the engineer would have a right to expect, would be the throwing of the engine and a portion of the train off the track. Was he to anticipate the bursting of the oil-tanks; the oil taking fire; the burning oil running into and being carried down the stream; and the sudden rising of the waters of the stream, by means of which, in part at least, the burning oil set fire to the plaintiff's building? This would be a severe rule to apply. . ."
In West Mahanoy Township v. Watson, supra, this court held as a matter of law that the negligent act of the township in leaving an ash heap on a road was the remote and not the proximate cause of the loss of plaintiff's horses which ran off the road and were killed by a train when the sleigh they were drawing struck the ash heap and overturned.
In Marsh v. Giles,
In Carpenter v. Miller Son,
In Rhad v. Duquesne Light Co.,
In Bruggeman v. City of York,
In Rugart v. Keebler-Weyl Baking Co., supra, the minor plaintiff, a boy sixteen years of age, was injured *288 while installing electric connections in defendant's bakery for an independent contractor. He was on top of a mixer under a water pipe, and while waiting for his fellow employee to pass the wires through a conduit, he amused himself by exchanging pleasantries with the girls employed in the bakery. For some unknown reason, one of the girls threw a piece of dough at him and it struck the sprinkler pipe nearest to him. Its impact on the pipe set off the sprinkler system and the water blinded and confused him. In this dazed condition, his arm and body became involved with a revolving shaft nearby, causing serious injuries. There we approved the following language of the learned court below, p. 413: " 'We think, however, that binding instructions to find for the defendant should have been given, because under the plaintiff's own theory as to how Frederick Rugart's arm came into contact with the shaft, the accident could not have been foreseen by the defendant as a probable result of its failure to turn off the power that caused the shaft to revolve.' "
In Matlack v. Penna. P. and L. Co.,
In Leoni v. Reinhard, supra, it was held that a good cause of action is not averred by a statement of claim which alleges that defendant's truck was carrying a load of unslaked lime on the highway, that as the vehicle passed the minor plaintiff, a child twelve years of age, *289 a piece of the lime fell from the truck and was picked up by him; and that he placed it in a bucket of damp earth he was carrying, and almost immediately the lime exploded and he was injured. There this Court said, p. 395: ". . . the injury to the plaintiff was not the proximate result of driving a truck loaded with lime upon the highway. The hazards that materialized into injury were so remote and unlikely that the defendant was under no duty to anticipate their existence."
The same result is reached if this factual situation is considered from another angle. Defendant clearly owed a duty to the adjoining owner not to trespass upon his ground. But there is nothing in this record to show that as to the children there was any duty by defendant to keep open its culvert. The highly remarkable circumstances which led to the accident — the children chasing their kite upon the ice, which gave way under them and caused their death — were not discernible to any human anticipation or foresight. There was no breach of duty to the children, and hence no negligence upon which a recovery can be based. In this connection, it is stated in the Restatement, Torts, § 281, comment c: "If the actor's conduct creates a recognizable risk of harm only to a particular class of persons, the fact that it causes harm to a person of a different class, to whom the actor could not reasonably have anticipated injury, does not render the actor liable to the person so injured." See also Harris v. Lewistown Tr. Co.,
For these reasons, the learned court below erred in not determining as a matter of law that the proximate cause of the accident was the independent act of the children, and in not giving binding instructions for defendant. In this disposition of the case it is unnecessary to consider the other assignments. *290
Judgments reversed, and judgments are here entered in favor of defendant.
Dissenting Opinion
I dissent from the majority opinion. The negligence of the defendant company in failing to keep its culvert open to carry off the water from a small sulphur stream under its track (a thing which it could do at a trifling expense), and so creating a large pond on the Montecupo land is clear: Ficke v. Pa. R. R.Co.,
In the light of these established facts, is it "too much to suppose" (as the majority opinion says it is) "that a prudent man, of ordinary intelligence, exercising due *291 care, and with the responsibility that was upon the defendant, could have anticipated and foreseen this unfortunate happening". And would it be (as the majority opinion says it was) necessary "for anyone to visualize the actual occurrence, the children running out upon the ice in pursuit of the kite, and the catching of the kite in the tree near the center of the pond, the breaking of the string, and the giving way of the ice and the tragedy that followed."
I think the sound and almost universally accepted rule is ". . . The harm which was foreseeable and the specific harm which actually resulted need not be absolutely identical __________", nor, that the defendant "could not foresee the precise manner in which the harm would occur, nor the exact nature of the harm, nor the full extent of such harm. What must be foreseen, in order to establish negligence, is 'harm in the abstract, not harm in the concrete.' The defendant need not foresee 'that an injury should occur in the exact way and to the same extent as that which did occur,' he need only foresee that some injury of a like general character is not unlikely to result from failure to use care": (italics supplied) Jeremiah Smith in Legal Cause in Actions of Tort, "Selected Essays on the Law of Torts" 649, p. 690.
Professor Harper in his treatise on the Law of Torts (January 1940) says: ". . . the courts are perfectly accurate in declaring that there can be no liability where the harm is unforeseeable, if 'foreseeability' refers to the general type of harm sustained. It is literally true that there is no liability for damage that falls entirely outside the general threat of harm which made the conduct of the actor negligent.The sequence of events, of course, need not be foreseeable. Themanner in which the risk culminates in harm may be unusual,improbable and highly unexpectable, from the point of view ofthe actor at the time of his conduct. And yet, if the harm suffered falls within the general danger area, there may be liability, *292 provided other requisites of legal causation are present." (Italics supplied).
It cannot be said as a matter of law that the defendant's neglect which created this pond on the land of a third party where children were invited to play and where the defendant knew they played did not create a "general danger area", a situation where injury was reasonably probable. In Bonczek v.Philadelphia,
The Restatement of the Law of Torts, Vol. 2, sec. 386, p. 1033, enunciates this principle: "Any person, except the possessor of land or a member of his household or a licensee acting on his behalf, who creates or maintains upon the land a structure or other artificial condition which he should realize as involving an unreasonable risk of death or serious bodily harm to others whom he should recognize as likely to be upon the land, is subject to liability for bodily harm thereby caused to them, irrespective of whether they are lawfully upon the land, by *293 the consent of the possessor or otherwise, or are trespassers as between themselves and the possessor." The phrase "or other artificial condition" clearly includes a deep body of water artificially created through neglect and which in winter freezes.
That ponds are, both in summer and in winter, attractive to children is as well known as any fact in human experience. That ponds freeze in cold weather and that children unapprehensive of danger often venture upon ice when it is too weak to bear their weight is attested by the annual newspaper reports of the drowning of hundreds of such children. That a pond which serves no useful purpose of any kind and which in fact constitutes a trespass upon another's land, as this pond did, should be eliminated by the party responsible for its creation and maintenance, particularly when that pond is in a neighborhood where there are young children, is a truth so obvious as to be self-evident. "The true-basis" of the modern rule now accepted in this jurisdiction, and generally, as to "the duty" of the possessor of a dangerous instrumentality which is attractive to children to do whatever is reasonably necessary to safeguard such children against injury from that instrumentality is, as we said (p. 592) in Thompson et al. v. Reading Co., supra, "the value of child life to the community" (quoting "Pennsylvania Annotations to the Restatement of the Law of Torts" (1938), p. 177, sec. 339). We added (from the same quotation): "The danger arises out of the likelihood of child trespassing. . ." To hold as legally responsible in damages the defendant who created and maintained this dangerous and totally useless pond of water, to which these children were naturally attracted with such fatal consequences, is obviously to the advantage of society, for it tends to protect human life, and as CARDOZO well said: "It is true, I think, today in every department of the law the social value of a rule has become a test of growing power and importance". *294 CARDOZO: "The Nature of the Judicial Process", p. 73.
The court below properly said "The pool which produced the drowning was not, at the site of the accident, upon the property of the defendant but was cast upon the property of another, due to the defendant's negligence." The court with equal propriety could have added that these children were express invitees of the owner1 of "the place". We think this case is clearly within the rule set forth in the Restatement of the Law of Torts, Sec. 386, supra.
The cases cited by the majority in support of its opinion that this court shall hold as a matter of law that there was a failure to prove the existence of causal relation between the defendant's negligence in failing to keep open the culvert and backing the water upon the lands of others and the drowning, because the drowning could not have been reasonably foreseen are inapposite here because in those cases the injurious results were brought about by intervening agencies, and they and not the negligence complained of were the "proximate cause". Even where there were intervening agencies, we have not always held that they were the "proximate cause". In Mautino v.Piercedale Supply Co.,
In Nelson v. Duquesne Light Co.,
The rule enunciated by us in these decisions and others, is applicable where the defendant has foreseeably increased the chance of harm through another force, and the rule is unquestionably sound and accepted generally *296 by the courts. See Carpenter on "Proximate Cause". 14 So. Calif. Law Rev. 115-153.
It is a well established rule that when an instrumentality has a recognizable potentiality for harm to human beings, he who controls that instrumentality must resort to every reasonable measure to eliminate or reduce that potentiality or respond in damages to anyone injured by it, if the injured person is without fault. That a pond covered with ice has a potentiality for harm to human beings, and especially to children, is a fact established by human experience. That the defendant "controlled" this pond is a fact in this case for it was defendant's failure to keep the culvert open which created the pond. That the defendant could have eliminated the pond by simply clearing the rubbish from the culvert was proven by the fact that after the drowning of these children it did so. By the defendant's own witnesses it was shown that it required only eight hours' work by three men to drain this pond and thereby abate this nuisance. This was accomplished by the simple expedient of opening the culvert, thus enabling it to perform the functions which it was designed to perform. This pond which was a nuisance was at all times the creature of this defendant and subject to its complete control. When the defendant acted with due care this pond, which served no useful purpose and which unlawfully worked injury to others, ceased to be a menace. Justice MITCHELL, speaking for this Court inCollins v. Chartiers V. Gas Co.,
In cases similar to the case at bar the Courts of other jurisdictions2 have generally held that the resulting damage fell within the general threat of harm created by the defendant's negligence, and the latter's negligence was the legal and proximate cause thereof.
In Daroren v. Kansas City,
In Best, Adm. v. District of Columbia,
In the instant case the water could be seen from the place where the children lawfully were, and "children were in the habit of going to the place", and their visits to the place should not only have been anticipated but were actually known to the defendant. Due regard for human life required the defendant company to abate the continuing trespass for which it was responsible, and which was obviously a place of danger to children and which actually resulted in the death of four children who were lawfully on the premises where they were drowned.
In Thompson et al. v. Reading Co.,
In the case of Altenbach v. Lehigh Valley R. R. Co.,
If in that case the company had erected no fence at all around its reservoir it would have been no less culpable than it was in erecting a fence that it permitted to fall into disrepair. In the case now before us, the defendant *302 company created and maintained this pond by its negligent act; the pond served no useful purpose; children played around it "practically every day" and the defendant was not only legally chargeable with knowledge of the fact that children played around this pond near its railroad tracks, but the defendant's track-walker whose duty it was to inspect the section of the company's property which included the blocked culvert was in the vicinity of the spot where the drowning took place, two or three times a week for at least a year before the drowning.
That this drowning took place a considerable period after the culvert was allowed to be blocked and the pond created does not decrease the defendant's responsibility in the slightest degree.
The defendant's position which the majority of this court upholds, is stated by it as follows: ". . . could it have been reasonably anticipated that the overflow of the water in this low spot would result after a year and a half or two years in the drowning of these four children by their walking out upon ice too thin to hold them while playing with or chasing a kite." In Schmidt v. Merchants Despatch Trans. Co., 270 N.E. 287, 300;
The trial of this case was free from error; the real issue was: should this defendant have reasonably anticipated that some child or children playing around this pond created and maintained by its neglect (and it was chargeable with knowledge that young children were so playing) would meet with either serious or fatal injury? We think the jury was fully justified in answering this question in the affirmative. What did happen here could easily have been anticipated; ordinary forethought by the defendant's agents and servants and the expenditure of a trifling sum of money would have prevented the drowning of these four young children. I would affirm the judgment of the court below.
Mr. Justice HUGHES concurs in this dissent.
