178 A. 467 | Pa. | 1935
This action in trespass was brought by a minor through his mother as next friend and by the mother in her own behalf to recover damages for personal injuries to the minor. The suit was against the owners of the building *378 in which the accident occurred, and they issued a writ of scire facias to bring in as additional defendant the renting agent in charge of the premises at the time of the accident. Prior to the trial the additional defendant died, and his executrix was substituted as a party in his place. At the conclusion of plaintiffs' testimony the learned trial judge granted defendants' motions for a compulsory nonsuit, and from the refusal of the court in banc to take it off plaintiffs appealed.
Viewing the testimony in the light most favorable to plaintiffs, as we are bound to do, we find that the minor, a boy five years of age, was severely injured while riding upon an electric freight elevator located in the rear of a vacant building owned by the original defendants. This building was a modern three-story brick structure which had been occupied until two months before the accident by a motor-car company in connection with its business of selling and servicing automobiles. The elevator was not visible from the outside of the building. A door was unlocked and open, and for a period of three or four weeks prior to the accident boys of the neighborhood had been going into the building and playing in it. It appears that a policeman, some three weeks before the date of the accident, finding the door of the building open, telephoned the renting agent and notified him of that fact. The record is entirely barren of anything to show that defendants had any knowledge of the use of the building by the children.
The contention of appellants is that these facts were sufficient to require that the case be submitted to the jury. With this we cannot agree. This child was a trespasser. The fact that he was of such tender years does not alter his status in this respect: Gillespie v. McGowan,
Defendants had no notice of the use that was being made of the property. Nor were they chargeable, under the circumstances, with negligence in not discovering it. The fact that a door had been open for some time and that knowledge of it had been brought home to the agent in no way acquainted them with the further fact that children were going into the building. It was not an old, dilapidated structure, neglected by its owner, but a large, modern building in good repair and only temporarily vacated. Under these circumstances, it was necessary for plaintiffs to show actual notice of the use of the building by the infant trespassers and the lapse of sufficient time after notice within which defendants could take steps to protect the premises from intruders: see O'Gara v. Phila. Electric Co.,
Plaintiffs have also assigned as error the refusal of the learned trial judge to reopen the case and permit the recall of a witness who had previously testified in their behalf. This request was not made until after the conclusion of the arguments upon defendants' motions for a nonsuit. The matter was within the sound discretion of the trial court: see Buck v. McKeesport,
Judgment affirmed.
Mr. Justice LINN did not participate in the decision of this case. *381