387 Pa. 408 | Pa. | 1956
Lead Opinion
Opinion by
The City of Jeannette and the Pennsylvania Railroad appealed from a judgment entered on a verdict against them jointly in favor of the plaintiffs. The important question involved is whether the evidence was
“On September 11, 1952, the minor was found fatally injured at the foot of a railroad embankment in the City of Jeannette in this County. He was lying close to the foot of the embankment and a few feet away from the near rail of one of the four tracks of the railroad company. The right of way of the railroad company extends in a general easterly-westerly direction. South First Street in the City of Jeannette terminates at the southern side of the railroad cut at the point in question.
“The railroad cut at the point where South First Street meets the right of way of the railroad company is 57 feet in depth.
“On September 10,1952, the minor, with his parents, had come to the City of Jeannette for a visit with certain of their relatives, and Michael T. Malloy, who was then ten years of age, on the afternoon of September 11, 1952, shortly after 5:30 p.m., left the home of his relatives with his cousin, Maureen Malloy, age sixteen, to play out doors. The two cousins, with several friends, rode bicycles up and down South First Street for some time before deciding to sit and talk in the church yard located approximately one block from the terminus of South First Street near the railroad property. Michael Malloy borrowed a bicycle from a boy named Bobby Hahn, one of the neighborhood children who was playing with him at the time. Maureen testi
“At the northern terminus of South First Street there is erected a wooden barricade extending in an east-west direction a distance of 18.84 feet. The barricade is formed of four upright posts and two plank cross pieces. The upright posts are 5 by 7 inches and the planks or cross pieces are 2 by 8 inches. These planks are nailed to the upright posts. The top of the ivesterly post is about 3.8 feet from the level of the ground; the next post in an easterly direction from there is 3.2 feet from the level of the ground; the third post from the western end of the barricade is 2.65 feet from the level of the ground, and the most easterly post is 3.15 feet in height.
“Maureen Malloy stated that she saw Michael go to the barricade on each occasion, Avith the exception of the last time he rode the bicycle north on South First Street, when she only saiv him riding as far as Magee Avenue, which is located approximately 122 feet south of the barricade. After a period of three or four minutes had elapsed and Michael failed to return, Maureen, accompanied by her two companions, Bobby Hahn and Joel Martin, walked on South First Street to the barricade in search of the missing Michael. These young people found the bicycle Michael had been riding lying near the barricade. Maureen and her two friends walked around the north side of the barricade and looked down the railroad cut and saw Michael lying at the bottom of thé but, directly below the barricade. Maureen also testified that she noticed a mark about a foot or so in length extending down the embankment as she looked down and saw her cousin lying at the bottom of the cut.
“A Miss Coletta McCartney testified that she lives in a house located at the corner of Magee Avenue and South First Street, which house extends in its length along South First Street. At the time of the accident, Miss McCartney was sitting on the porch of her home with her aged mother at the westerly side of the house. She testified that this section of South First Street, between the barricade and Magee Avenue, was used as a playground by children.- She further testified that- on the afternoon of this occurrence she noticed a -number
“There is an abundance of testimony to the effect that the children from the neighborhood used South First Street between Magee Avenue and the railroad cut as a playground. They rode their bicycles, played ball and the usual childhood games.
“Both of the defendants deny erecting the barricade and each defendant contends that the barricade is not on its property.
“The jury returned a verdict in favor of the plaintiffs and against both defendants.”
No one saw or knows how the tragic accident happened. It is important to note that there was no evidence that the barricade was broken or defective or inadequate ; nor was there any proof that the present barrier should have been extended or that a barrier should have been erected at any other spot. It is apparently necessary to restate the principles of law which are applicable to the facts in the instant case.
In Finnin v. Neubert, 378 Pa. 40, 105 A. 2d 77, the Court said (page 43) : “Deep sympathy for this boy. does not justify a Court’s finding negligence unless the evidence justifies it. We said in Brusis v. Henkels, 376 Pa. 226, 102 A. 2d 146, “‘. . . ‘The mere happening of an accident is no evidence of negligence . . . Plaintiff
“. . . [In] Ebersole v. Beistline, 368 Pa. 12, 82 A. 2d 11, . . . The Court said (pp. 16, 17, 18) : ‘The evidence is insufficient to warrant recovery if it fails to describe, picture or visualize what actually happened sufficiently to enable the fact-finding tribunal reasonably to conclude that the defendant was guilty of negligence and his negligence was the proximate cause of the accident.
“. . . There was no proof of absence or want of due care on the part of the defendant and conjecture, speculation, guess or suspicion do not amount to proof. The circumstantial evidence does not provide as the only reasonable inference the conclusion that the accident was caused by the negligence of the defendant; . . .”
In the instant case Michael could have intentionally left the street and walked around the barrier through wooded property to the spot from which he fell; he could have walked through the nearby properties and returned to a spot from which he fell; he could have been standing on the edge of the gorge or embankment
McHugh v. Reading Co., 346 Pa. 266, 30 A. 2d 122, is a case which is analogous in its facts to the instant case and governs it. The case is well summarized in the syllabus which reads as follows:
“In an action for wrongful death, in which it appeared that the decedent, a six-year-old child, climbed on top of defendant’s stone wall, seated herself on an ornamental scroll formation known to children in the neighborhood as The king’s throne’, and thereafter, while descending, fell some twenty-four feet to the street below and was killed, it was Held, under all the evidence, that the defendant was not liable.
Mr. Justice, now Chief Justice, Stern said (pages 268-269) :
“We have not been referred by counsel to any Pennsylvania case, nor has our own research disclosed any, in which recovery was allowed against the possessor of land, even though a permissive playground, where a child was injured merely by falling or jumping from a stationary object or structure on the property. Liability to trespassing children has uniformly been limited to accidents arising from latent dangers, such as unguarded machinery, live wires, pits or open trap doors. This distinction results from one of the conditions of liability set forth in the Restatement of Torts, §339, clause (c), that The children because of their youth do not . . . realize the risk involved . . .’ In the comment (p. 925) on this clause the Restatement says: ‘A possessor of land is . . . under a duty to keep so much of his land as he knows to be subject to the trespasses of young children free from artificial conditions which involve an unreasonable risk of death or serious bodily harm to them. This does not require him to keep his land free from conditions which even young children are likely to observe and the full' extent of the risk involved in which they are likely to realize. The purpose of the duty is to protect children from- dangers which they are unlikely to appreciate and not to protect them against harm resulting from their own immature recklessness in the case of known danger.’ This principió has been applied in our own cases, as, for ex
“No danger is more commonly realized or risk appreciated, even by children, than that of falling; consciousness of the force of gravity results almost from animal instinct. Certainly a normal child nearly seven years of age — indeed any child old enough to be allowed at large — knows that if it steps or slips from a tree, a fence, or other elevated structure, it will fall to the ground and be hurt. It may be that some children, while realizing the danger, will disregard it out of a spirit of bravado, or because, to use the language of the Restatement, of their ‘immature recklessness’, but the possessor of land is not to be visited with responsibility for accidents due to this trait of children of the more venturesome type.”
See to the same effect: Prokop v. Becker, 345 Pa. 607, 29 A. 2d 23; DiMarco v. P. R. R. Co., 321 Pa. 568, 183 A. 780; Jennings v. Glen Alden Coal Co., 369 Pa. 532, 87 A. 2d 206.
Appellees rely on Balia v. Sladek, 381 Pa. 85, 112 A. 2d 156, where defendant had failed to provide a barricade at a bend in a precipitous hillside. The Court said: “ ‘If a public street is dangerous by reason of its proximity to an embankment or precipitous decline, the city is liable for its failure by the erection of barriers or other devices to guard travelers from injury, in the use of the highway, who exercise reasonable care for their own safety’ . . . .” The facts in the instant case do not bring it within the principle of Balla-Sladek.
Judgment is reversed and is here entered for each defendant non obstante veredicto.
He was one block away and did not know what the object was.
Italics throughout, ours.
This principle was reiterated as recently as Gayne v. Carey Mfg. Co., 385 Pa. 618, 621, 123 A. 2d 432.
A property owner is not liable to a ten year old very alert; intelligent and exceptionally athletic boy for a steep embankment or dangerous condition, tbe existence of which is obvious and the risk of falling is fully realizable by him: McHugh v. Reading Co., 346 Pa. 266, 30 A. 2d 122; Prokop v. Becker, 345 Pa. 607, 29 A. 2d 23. See also: Roche v. P. R. R., 169 Pa. Superior ct. 48, 82 A. 2d 332; Jennings v. Glen Alden Coal Co., 369 Pa. 532, 87 A. 2d 206; DiMarco v. P. R. R. Co., 321 Pa. 568, 183 A. 780; Kosson v. West Penn Power Co., 293 Pa. 131, 141 A. 734.
Dissenting Opinion
Dissenting Opinion by
South First Street in the City of Jeannette which travels northwardly and southwardly, ends its northern terminus with a precipitate drop of 57 feet to the tracks of the Pennsylvania Railroad below. At this cliff-like extremity, the City of Jeannette or the Pennsylvania Railroad planted 4 upright wooden posts from 2.6 feet to 3.15 high, to which ivere nailed two cross planks with an overall width of 18.84 feet. A ledge of 2 or 3 feet separated the barrier from the sheer descent of 57 feet to the railroad road of way. Between this obstruction and Magee Street, one block away, the children of the neighborhood used South First Street as a playground, riding bicycles and playing baseball and other childhood games within the circumscribed area.
On the afternoon of September 11, 1952, Michael Malloy, a lad 10 years of age, with other children, revelled in the games and entertainment which the playground afforded. After several hours of play they all paused to rest and regale each other with stories, as they sat in a churchyard close by. But while the other boys were talking, Michael borrowed the bicycle of his friend Bobbie Hahn and rode to the barrier and back. He did this 5 or 6 times and then disappeared. Several
Actions of trespass were brought against the City of Jeannette and the Pennsylvania Railroad and verdicts totaling $15,000 were returned in favor of the parents and the estate of the deceased boy. This Court has reversed those verdicts and entered judgment in favor of the defendants.
Both defendants were aware that the area in question was used as a playground for children; both knew of the proximity of the hazardous drop to the railroad tracks; both knew that the slightest slip on the part of any child at the edge of the hazardous plateau would cast him to his death to the railroad tracks in the abyss. Despite this knowledge, nothing was done by the defendants to protect the children from a fate which could so easily be foreseen. No signs were erected warning children to stay away from the cliff, and the barrier itself was as impotent to prevent anyone from toppling over the elevation as a scaffolding of toothpicks. The right of way of South Front Street was 50 feet in width, the so-called barrier was only some 18 feet wide.
■ The Majority Opinion hypothesizes as to how the accident occurred: “In the instant case Michael could have intentionally left the street and walked around the barrier through wooded property to the spot from which he fell; he could have walked through the nearby properties and returned to a spot from which he fell; he could have been standing on the edge of the gorge
After stating these imaginative situations, the Majority Opinion says: “There was no evidence to prove or to justify a finding that Michael was thrown from his bicycle over the barricade and down the embankment.” But it was not necessary to prove that Michael was thrown from his bicycle over the barricade and down the embankment. It was enough to show that the defendants were negligent in allowing on their property a highly dangerous condition with the knowledge that children could be injured or killed by that condition, and yet do nothing to forestall that terrible possibility. That Michael fell over the embankment cannot possibly be questioned. Joseph Gurksnis testified to seeing his helpless form dropping to the tragic climax. The Majority Opinion ununderstandingly seems to want to envelop this incident in the fog of doubt and accordingly says of the testimony of Gurksnis: “He was one block away and did not know what the object was.” But Gurksnis indubitably identified the object he saw falling as Michael: “Q. Were you the first to discover the boy, sir? A. I was the first to see him fall. Q. What did you do when you saw the boy fall? A. I crossed the street and I looked up into the cut to see what happened.”
In justifying its exculpation of the railroad company from any liability in. this case, the Majority Opinion cites the case of Dugan v. P. R. R., 387 Pa. 25, and quotes from it as follows: “. . . it is so well settled in this State as to admit of no argument, that it is not obligatory on the part of the railroad to fence its right-of-way to prevent trespassing by children”. Although I presented an argument several pages long in my Dis
The plaintiffs, in supporting their verdict won in the Court below, cited the case of Balla v. Sladek, 381 Pa. 85, decided only a year and a half ago. The Majority Opinion categorically announces that “the facts in the instant case do not bring it within the principle of Balla-Sladek.” If the facts in the instant case do not come within the principle of Balla-Sladek, it is only because they are stronger for liability against the defendants. In the Balla-Sladek case, a Linden. Avenue in East Pittsburgh, on which the fated vehicle was travelling, was 30 feet wide,' accommodating-two sets of trolley tracks and a lane for motor vehicles. On the other side of this lane rose a 6-inch curb and then beyond that extended a 6-foot sidewalk. A line of railroad ties, 6 or 7 inches high and 9 inches wide, bordered
In the Balla-Sladek case, the hillside ran alongside the highway, here it is practically in the highway. Here we have a condition where a street suddenly terminates at the top of a precipice. As we already stated, no signs warned the wayfarer of the fatal embankment, and the barrier itself was not wide enough, strong enough, or tall enough to prevent anyone from slipping over the lip of the calamitous crag.
It is because of situations exactly as the one which appears in this case that the Restatement, Torts, Section 368, says: “A possessor of land who creates or maintains thereon an excavation or other artificial condition so near an existing highway that he realizes or should realize that it involves an unreasonable risk to others accidentally brought into contact therewith while traveling with reasonable care upon the highway, is subject to liability for bodily harm thereby caused to them”
It is because of death leaps like the one which overshadows the end of South Front Street in Jeannette,
When the Pennsylvania Railroad sliced away the extremity of South Front Street and left the amputated remainder projecting out into empty air, it incurred the responsibility of bandaging up what was left in such a way that grownups and children using it would not drive or cycle out into the void. The earth is the foundation of every man-made superstructure, and no one has the right to remove part of that foundation without replacing it with safeguards which will save mankind from the inevitable law of gravitation which, unless checked, will take anyone within its grasp down to the deepest depths of which it is capable.
Despite the quotation by the majority of this Court in the Dugan case, and the repetition by the Majority in this case, of a quotation which presumes to perpetuate a doctrine which this Court has never proclaimed, a duty still devolves upon a railroad company to erect a stone wall, a fence, or any other type of suitable barrier to prevent human beings from tumbling into excavations, holes, and abysses which the railroad has created and which are screened from the general eye of caution and normal observation.
In refusing to enter judgment n.o.v., and in affirming the jury verdicts in the Court below, the Court of Westmoreland County, cited the precedent of Rasmus v. Pennsylvania Railroad, 164 Pa. Superior Ct. 635, as controlling the principles involved in the case at bar. The Majority Opinion makes no mention of the
• The object of the civil courts is to impose pecuniary and property liability on those who are at fault and to absolve those who are without fault. In this process it is obviously unjust to require anyone to respond monetarily to a situation of which he had no notice
I dissent.
Italics throughout, mine.