205 Pa. 314 | Pa. | 1903
Opinion by
The testimony as given in the paper-book does not disclose the facts of the case as fully and clearly as it should. On the trial, the witnesses were permitted to give distances and to indicate the position of the child by reference to objects in the court room, and consequently we are not in possession of some important data necessary to a full understanding of the facts. This practice is not commendable, especially in cases of sufficient importance to be reviewed by an appellate court, as such testimony discloses no facts to those who read it. There is a total absence of any measurements before us showing the width of the pavement proper or the pavement as enlarged by the space between the factory and the building line. This is an important feature of the case and exact data should have been produced at the trial and printed with the record. From these suggestions and the indefinite character of some other parts of the testimony, it is not singular that the parties disagreed as to whether the accident occurred on the pavement proper or in the rear of the building line. On the facts as they were disclosed on the trial below, we think the learned trial judge erred in withdrawing the case from the jury.
The defendants were engaged in the business of manufacturing articles from slate at their factory at 122 Eutaw street, in the city of Philadelphia. For several years they had been accustomed to stand large slabs of granite and slate in front of and against their factory building on both sides of a door which leads into the cellar of the building. These slabs were from three to five feet in length and, in the language of one of the witnesses, “ were all piled up in front of the building and pretty nearly half of the pavement was taken.” The cellar door was partly in the pavement from which it inclined upward to the wall of the building. About four o’clock in the afternoon of June 26, 1896, the plaintiff, a boy of about seven and a half years, having returned from school to his home in that section of the city, was on the cellar door in front of the defendant’s manufactory. While there he placed his left foot on
The defendants had no right to use the pavement of the street as a storage ground for the material used in their factory. They could use it temporarily in conveying the material to the factory and in taking the manufactured articles from it. But even under those circumstances they were required to observe proper care and precaution so as not to endanger those who were using the pavement for transit. Notwithstanding the argument of the defendants to the contrary, the evidence would have justified the jury in finding that the place in front of their building, including a part of the pavement, had been occupied continuously for four or five years by the material used in the factory. Of course, the same slabs were not there for that length of time, but when any slabs were removed, others replaced them. The slab that fell on the boy had stood in its place for at least one month. The act of the defendants in obstructing the pavement was a nuisance and hence was unlawful. They were, therefore, responsible for injuries occasioned by their conduct to any person lawfully using the street and who was himself without fault. The streets of a city are for the purpose of transit and, except for temporary use by abutting property owners recognized as lawful, it is illegal to obstruct them.
If the plaintiff was within the building line at the time he fell, the defendants are not necessarily relieved of liability for his injuries. The evidence tended to show that the space between the building line and the factory had been paved and was used as a part of the sidewalk of the street. If that be true, the defendants, were required to exercise due care to keep it in a reasonably safe condition, and if they placed and kept upon it a dangerous obstruction resulting in injury, an action would lie to the injured person: Tomle v. Hampton, 129 Ill. 379; Holmes v. Drew, 151 Mass. 578. In paving the space in front
If it be conceded, however, that the ground between the factory and the building line was not paved, yet it was open and practically a part of the foot walk of the street. The defendants, therefore, having regard to these circumstances, owed a duty to the public to exercise reasonable care to keep it safe so that those using the adjacent highway would not be exposed to danger. As said by Chief Justice Agnew in Hydraulic Works Co. v. Orr, 83 Pa. 332: “ Duties arise out of circumstances. Hence, where the owner has reason to apprehend danger, owing to the peculiar situation of his property and its openness to accident, the rule will vary. The question then becomes one for a jury, to be determined upon all its facts of the probability of danger and the grossness of the act of imputed negligence.” The owners of the premises are required in such cases to anticipate that children as well as adults may use the highway and thereby be exposed to any unsafe objects placed upon the premises. In this case the person injured was a child of very tender years. His childish instincts led him to the place. He saw the slate, and, just from school, ho had a desire to write on it. His conduct was perfectly natural and what might have been expected of any schoolboy of his age, and especially of any child of the evident precocity of this boy. Pertinent and applicable to the facts of this case is the language of Cooley, C. J., in Powers v. Harlow (Mich.), 51 Am. Rep. 154: “Children, wherever they go, must be expected to act upon childish instincts and impulses; others who are chargeable with a duty of care and caution toward them must calculate upon this, and take precautions accordingly. If they leave exposed to the observation of children anything which would be tempting to
It is strenuously urged that the child was a trespasser and that, therefore, in the use of their premises the defendants owed him no duty of protection against the injuries he sustained. Several cases decided by this court are cited in support of the proposition and as sustaining the contention of the defendants that by reason of the trespass there can be no recovery here. But those cases were ruled on a different state of facts and do not control the present case. Similar or analogous facts alone make a case a precedent for subsequent decisions, and dicta in the opinion, not necessary to a decision on the facts presented, are not to be regarded as an authoritative enunciation of a principle. While in some of the cases it is said that a child may be a trespasser and subject to the consequences of his trespass, yet it will be found hi many, if not all, of the cases that under the facts disclosed the law imposed no duty upon the defendant and that the injuries were not the result of his negligence. The mere fact that a child was injured without his fault is not sufficient to impose a liability on the defendant unless he is convicted of negligence. The defendant’s negligence and the child’s lack of want of it must both be found before there can be any liability on the part of the defendant. Here, as we have seen, the peculiar location of the ground where the accident occurred imposed the duty of reasonable care in the use of it on the defendants, and it is averred as the cause of action that the plaintiff’s injuries were due to a negligent performance of that duty. This was a question for the jury. So also was the alleged negligence of the plaintiff if he were of sufficient age to appreciate and avoid danger. Where the extreme
The case as presented on the trial in the court below should have been submitted to the jury with instructions as to the rights of the plaintiff and the duty of the defendants at the place of the accident. The nonsuit was, therefore, improperly granted.
The judgment is reversed with a procedendo.
