McCarron v. Philadelphia

46 Pa. Super. 145 | Pa. Super. Ct. | 1911

Opinion by

Rice, P. J.,

The facts of this case are clearly and accurately stated by the learned trial judge in his opinion overruling the defendant’s motions for a new trial and for judgment non obstante veredicto, and need not be restated by us. It is contended that the stone was not in a position where any one using the street would have occasion to go, and, therefore, the court should have charged that the allegation that the city was negligent in permitting it to remain was not sustained. As there was abundant evidence of constructive notice to the city of the conditions that had existed for two months, the affirmation of this proposition would necessarily involve the conclusion, either that the city owed no duty to the public in respect of that part of the street, or that the happening of the accident by which the plaintiff was injured was an extraordinary occurrence, which the city in the exercise of reasonable care could not be expected to foresee and provide against. Neither of these conclusions can be sustained as a proposition of law. While the place where the stone stood was not in the direct line of travel of those ascending or descending the steps leading to the Walnut street bridge, yet it was part of the paved highway and was legally dedicated and actually open to such lawful use by the public as there might be occasion for. Therefore, the duty of the city was not restricted to the safeguarding of the highway against injury to persons having occasion to go up or down the steps, but included the maintenance, in a safe condition, of the part of the pavement at the side of the steps, having regard to the lawful use of the same which might reasonably be anticipated. This was not a mere matter of speculation. The testimony is uncontradicted that children found this an attractive place and played in the sand around the stone from the time it was placed there. It is to be observed further, that the stone was not placed there lawfully. It was not only an unlawful encroachment on the highway, but, according to the testimony, it was placed in such a way that the child was able to topple it over on himself. The child was not a trespasser, and no independent intervening cause was shown. As matter of law, a duty of exercising care according to the circumstances rested on the city, and there was ample evidence to sustain a finding of fact that the dangerous condition might have been ascertained by the city, and the accident that ensued from it might have been foreseen and prevented if due care had been used. The distinction between the case and those relied on by the appellant is clearly pointed out by the learned trial judge in his opinion, and we need not go over the ground again. We all concur with him in the conclusion that the question of the defendant’s negligence could not have been withdrawn from the jury.

But it is argued that instructions should have been given that the parents were barred of recovery by their contributory negligence in permitting a child of this age to be upon the street unattended. As to whether the parents permitted the child to go upon the street, there is no affirmative evidence. If the fact of such permission is to be assumed in the disposition of this appeal, it must be upon the ground that their permission is to be presumed from the fact that he was upon the street. Grant this presumption. Does it necessarily follow that the court should have declared, as matter of law, that the parents were guilty of contributory negligence? In determining that question the fact must not be overlooked that the child was not, strictly speaking, unattended. It is true he was not in the care of a nurse; but he was in the company of older children. It is to be observed further, that the circumstances of the parents were not such as to enable them to have the services of a care taker for the child whenever he went outside their door; Moreover, the apparent dangers to a child, even of the age of this one, were not great. Upon this subject we repeat what the learned trial judge says: “Although it was in fact and name a public street, yet no place could have been safer from the ordinary dangers to children of tender years making use of a public street as a playground. Upon the east side there were no houses, and it was a cul de sac with steps mounting to Walnut street. It was used neither by street railways, automobiles, bicycles, ice wagons nor any other agency calculated to do damage, and it was a bright sunny afternoon in the early spring tempting a child to play out of doors; and the father was in humble circumstances, being the owner of a milk route, and unable to employ nursemaids to assist his wife in the cares and the responsibilities of parentage.” If there can be a case in which it would be proper to submit the question to the jury, whether the parents exercised care according to the circumstances, this is such a case. Undoubtedly the conditions might be such that it would be the duty of the court to declare, as matter of law, that the parents were guilty of contributory negligence. But, having regard to the special and peculiar conditions existing here, we think the court committed no error in submitting the question to the jury.

All of the assignments of error are overruled, and the judgment is affirmed.