Opinion by
This is an appeal from the refusal of the court below to take off a compulsory nonsuit. Sussman Brothers leased a building owned by the Oliver Iron and Steel Company, the еast wall of which collapsed, causing the death of Stanley Pieckowicz. The building was located on the south bank of the Monongahela River. In 1936 it was owned by the Carnеgie Illinois Steel Corporation and leased to C. L. Newsome, who conducted a grain and feed business in it. In May of that year fire occurred in the building, which left fire marks on the wall in question. In 1936 the building east of the wall that collapsed was owned by the American Sheet and Tin Plate Company and was leased to C. L. Newsome. By merger, the buildings passеd to the Carnegie Illinois Steel Corporation on May 22,1936. During May of 1936 fire occurred in this building also. Shortly after the fire, this building was torn down, except the west wall, which was the party wall serving both buildings. The wall left standing formed the east wall of the building owned by the Oliver Iron and Steel Company and leased to Sussman. The wall, prior to the time it collapsed, was mоre than 25 years old. The record is barren of evidence that would show that prior to the falling the wall was leaning, cracked, unsupported, or in a weakened condition. Although there were fire marks on the wall, there was no evidence showing to what extent the wall had been exposed to fire or any deleterious effect of fire upon it.
On May 22, 1941, Stanley Pieckowicz was seated on a concrete slab at the northeast corner of the building. There was a thunder storm with high wind. The wall in question extеnded several feet above the roof of the building which was then occupied by Sussman for the storage of reclaimed sugar, potato and coffee bales. The *211 bales or bags weighed 300 to 500 pounds and were piled about one and a half to two feet from the wall. They were piled five bales high. Although there was evidencе that about a week before the accident these bales were piled against the wall ten feet high and two or three bags fell out when the wall collapsеd, there was no evidence that the bags leaned or pressed against the wall.
The plaintiff offered evidence that after the building was demolished in 1936, children played ball there and older people loafed there; that boys made a roller coaster track for bicycles over the uneven surface. There was еvidence that the concrete slab in question had been used as a seat since 1936 and persons had played games of cards and dice upon it. The witnesses tеstified that the use made of the lot was similar to that of many other lots along the river in the immediate vicinity. There was evidence that the watchman for the Oliver Iron and Steel Company, as well as the police, would break up gambling there but did not disturb the children who were playing.
At the close of plaintiff’s case a motion was made to enter a compulsory nonsuit because the plaintiff had failed to establish (a) a permissive use of the premises so far as Stanley Pieckowicz was concerned and (b) there was no evidence of negligence on the part of the defendants. A compulsory nonsuit Avas entered, and with that order we are in accord.
The learned trial judge states: “Numerous witnesses were called to show that the river in front of the lot in question was used for bathing. The immediate river bank, however, was not a part of the premises. There was testimony that children rode their bicycles on the vacant lot and, in spite of the uneven surface of the ground and the presenсe of a large deep pit in the center of the open space, played baseball there. None of this testimony, however, was sufficient to provе that the lot could be regarded as a known ‘recreation center.’... It is our opinion that the testimony adduced failed to estab *212 lisia the vacant lot as a playground. Further, there is positive evidence that the adults who played cards, shot crap, and otherwise gambled, were chased by the police, as well as by a watchman employed by the Oliver Iron and Steel Company. The evidence adduced failed to establish permissive use, The decedent therefore was either a trespasser or, at most, a mere gratuitous licensee.
“A possessor of land is subject to liability for bodily harm caused to gratuitous licensees by. a natural or artificial condition thereon if, but only if, he (a) knows of the condition and realizes that it involves an unreasonable risk to them and has reason to believe that they will not discover the condition or realize the risk, and (b) invites or permits them to enter or remain upon the land, without exercising reasonable care to make the cоndition reasonably safe, or to warn them of the condition and the risk involved therein”: Restatement of Torts, Vol. 2, Sec. 342, page 932;
Musto v. Lehigh Valley Railroad,
The evidence fails to support the plaintiff’s theory that the lot was a playground. “The amоunt of use- that will bring otherwise private ground within the playground rule must depend to a large extent on the circumstances of each case. It may be said that the use сontemplated is such as to cause the place to be generally knoAvn in the immediate vicinity as a recreation center, and its occupancy shоuld be shown to be of such frequency as to impress it with the obligation of ordinary care on the part of the owner”:
Fitzpatrick v. Penfield,
*214 Having concluded that the plaintiff failed in establishing a permissive use of the premises so far as the decedent, Stanley Pieckowicz, was conсerned, and that there was no negligence shown on the part of the defendants which would permit the submission of the case to a jury, it becomes unnecessary to consider the other assignments of error.
Judgments affirmed.