10 A.2d 810 | Pa. Super. Ct. | 1939
Argued October 11, 1939. This action in trespass was brought by parents for the death of their minor son. After verdict for the plaintiffs, a refusal of defendant's motion for judgment n.o.v., and entry of judgment, the defendant took this appeal, claiming that judgment should have been entered in its favor as a matter of law.
The defendant is engaged in trucking and operates a freight terminal and private garage at the southwest corner of Lehigh Avenue and Edgmont Street in Philadelphia. The width between curbs of Lehigh Avenue is 66 feet and of Edgmont Street 27 feet. Defendant's business is so extensive and its operations are such that it is necessary at times to park on the street its tractors, trailers, and tractors and trailers connected. On January 13, 1938, one of these tractors with trailer arrived at the terminal when the two were disconnected. The trailer was placed inside the garage and the tractor was parked close to the curb in the usual manner on the south side of Lehigh Avenue facing east toward Edgmont Street. A relay driver was then summoned to take the tractor and trailer through to Baltimore. The tractor furnished the motive power and had on it a cab and driver's seat but it had no storage capacity for freight, such being provided by the trailer. When connected the tractor and trailer formed one distinct carrying unit which was similar in construction to trucks which are seen every day on the public highways.
After the tractor had been standing on the street for about an hour and before the driver arrived, some children living in the neighborhood came to the intersection of these streets and began to play. A boy, Anthony Kasianczuk, then thirteen years of age, boarded the tractor, started it, and drove across the street where it was stopped. When Anthony stopped the tractor he saw the plaintiff's son John, then ten years of age, badly injured, lying on the street near where it had been parked. It appeared from other testimony *395 that the younger boy had jumped on the running board when the tractor started and that the starting of the car had caused the door of the cab to open and dislodge him so that he fell under the wheels. He died within three or four days as a result of these injuries.
The plaintiffs charge, as a main basis of recovery, that defendant's employee was negligent in that when he parked the tractor he did not remove the key from the ignition lock, and claim that the question of negligence is to be weighed in the light of the fact that boys were habitually permitted to play around and on the tractors and trailers of defendant while on the street and that this tractor was so attractive to children as to increase the measure of responsibility resting on the defendant. In short, plaintiffs rely on two classes of cases, "playground" and "attractive nuisance" cases, where comparable questions have arisen. It will be necessary to refer to additional testimony before we can determine whether the principles of those cases are applicable.
In one of the "turntable" cases, Thompson v. B. O.R.R. Co.,
Our appellate courts have likewise held that a child may be a trespasser upon personal property as well as upon land and that ordinarily the responsibility of the owner is limited to the requirement that he shall not wilfully, wantonly, or intentionally injure such minor: McGinnis v. Peoples Bros.,
Are the principles of the playground cases applicable to the admitted facts found here? The evidence disclosed that a number of boys lived in the neighborhood where defendant's premises were located and that they played cards, crap, and variations of a game of "tag" on the street at the corner in question and within two blocks of that location although there were two public playgrounds within a few blocks of that corner. It was also shown that in playing the game of "tag" the boys at times got on the tractors and trailers of the defendant. The testimony, however, will not support the claim that the defendant acquiesced in trespasses upon its premises or property by the boys in their play: Wright v. Penna. R.R. Co.,
Following the Thompson case, it would appear that defendant owed this boy the duty not to injure him intentionally, wilfully, or wantonly, but the street intersection was not such a playground as placed on defendant the active duty to take care of him by keeping him off of the cars or by protecting him when he entered the tractor without permission, and there cannot be negligence unless there is a breach of duty. But the plaintiffs say that even though this was not a playground in the strict sense of that term children did, as a fact, play there to the knowledge of defendant, and that such practice is to be taken into account in connection with *398 the attractive nature of the truck in measuring defendant's duty and then determining whether defendant was negligent.
While Thompson v. B. O.R.R. Co., supra, accurately states the common law doctrine with relation to adult and minor trespassers, the rigor of the common law has been abated to a certain extent in this and other jurisdictions. In practically all courts there is exhibited a tendency to throw additional safeguards around minors of tender years by increasing the responsibility of owners of land and other property. The extent of departure shows much variation in the different states and the results reached and the reasons given in support of the doctrine vary: 37 A.L.R., note p. 34. Whatever may be the precise form produced by the change it is now generally referred to as the "attractive nuisance" doctrine, a term described by Chief Justice SCHAFFER in Dolena v.Pittsburgh Terminal C. Co.,
We have found no better statement of the rule as it should be and as we understand it to be in Pennsylvania than as given by Mr. Justice HOLMES in United Zinc Chemical Co. v. Britt,
The "attractive nuisance" doctrine can be carried to such an extent that every owner will be made an insurer against injury caused to a minor by any property, real or personal, that the owner may possess. Scarcely an object can be named that does not have some attraction for a child and the younger the child the more varied are his inclinations and the objects which appeal to him. To hold that every object that attracts the fancy of any minor under fourteen years of age and is a source of danger to him is an attractive nuisance would certainly not be applying the principle with caution. Before we may label a situation or object as the equivalent of an invitation or an allurement, consideration should be given to its character, whether it is natural and common or artificial and uncommon. As to dangers that are natural in their origin and commonly encountered, it is the duty of parents to guard and warn *400 their children and the responsibility for failure to act is on them. On the other hand, a danger specially created by the act of the owner, novel in character, attractive and dangerous to children, easily guarded against or made safe, calls for care upon the part of the owner.
Among the most common objects that meet the eye of every child in our Commonwealth are automobiles and trucks. They are neither uncommon nor novel for we see them on every hand. If we are to treat a truck as an attractive nuisance then there is no limit to this doctrine. Automobiles are seen by the hundreds and almost every family in this country has one; even the small retailer has his truck. We cannot hold that the mere object, a truck or an automobile, as such, comes within the classification; neither did the situation or condition of this truck constitute an attractive nuisance. It was parked at the curb just as myriads of cars are; it had its brakes set and was located on level ground where its position could not be easily changed; it was on the highway where cars are intended to be principally used. Certainly this did not present any unusual allurement.
The appellees say that the key was not removed, and that is true. However, the presence of the key did not cause these boys to trespass upon the truck. That was something that was discovered after Anthony got in the car. There must be an allurement before there is liability for mere negligence even though a danger exists. Two boys were trespassing upon private grounds before they came upon a pond which they deemed suitable for bathing. They went swimming, the water was poisonous, and they died. Recovery was denied because the pond did not allure them to trespass, and very logically so for they trespassed before they discovered the pond: United Zinc Chemical Co. v.Britt, supra.
The potential danger here was not imminent. It was not like a high power wire where the mere careless *401 touching of the wire might cause death. The car was not left in such condition that the mere jumping on the running board or going inside the car would cause it to move; it required expert knowledge to start it, which indicated sufficient intelligence upon the part of Anthony to know the consequences of his act, as we shall see.
The car was properly parked on the level in a place where it had a right to be, the ignition was turned off, the brakes were securely set, and no boys were then about the premises so far as the testimony discloses. Anthony was thirteen years of age and exhibited precocity with respect to the operation of an auto. His own language was as follows: "I went in there, I put my foot on the clutch, turned the key on and put my foot on the starter. Then she started, then I lift the clutch out and she went off with a jerk and start going." He said some boys were around the truck but that he did not see any of them on the truck. When the car was on the other side of the street he turned the ignition off and the truck stopped. Anthony knew nothing about how John got on or off the truck. Another witness, an adult, saw John jump on the running board as the car started and he stated that it moved slowly about four feet when John jumped or was thrown off and injured by the wheels of the truck. It will be observed that the car was not accidentally or unintentionally started when a boy happened to be in or passing the car, but was intentionally and designedly put in operation by one who knew the complicated operations necessary to start the car. With respect to the boy John the testimony is meager. All we know is that he jumped on the running board of a car in motion, or just as it started, fell off when it had gone four feet, and that the truck moved only about thirty or forty feet. It will be observed that it required the manipulation of one with experience to put the car in motion so that it caused the damage that it did. It would seem that *402 the owner had a right to assume that one who had sufficient knowledge to move this car under its own power would be responsible for the consequences of his act. In any event, the possibility of injury in the manner in which this occurred was not such an occurrence as the owner of the property was called upon to anticipate from a trespasser.
The mere fact that the key was not removed from the ignition lock was not sufficient of itself to show negligence: Roscovichv. Parkway Baking Co., supra. That case also supports the general conclusion at which we have arrived in this case. There several boys attempted to jump on a truck and the operator drove them away. The driver went into a store on an errand, after shutting off the power and setting the brakes, but he did not remove the "contact key" from the lock through which electric power was supplied. In his absence a boy five years of age set the car in motion by operating the key, when the boy jumped or fell from the car and was injured. We held that the plaintiff could not recover. In McGinnis v. Peoples Bros., supra, a six-year-old boy was injured while playing with other boys upon a wagon driven by defendant's employee. The wagon was started without giving the boy a chance to alight and he was injured. The boy and his father were not permitted to recover. In Perrin v. Glassport Lumber Co., supra, a boy three years of age who trespassed upon a truck was injured by a fall from the truck when it was started, and it was held that he was a trespasser and could not recover for there was no evidence of wilful or wanton injury. It will be noticed that the son of plaintiffs in this case likewise fell from the truck when it was started.
The act of Anthony in moving the tractor was the proximate cause of the injury to John, plaintiffs' decedent. In De Carlo v.Margolis,
In Rhad v. Duquesne Light Co.,
The plaintiffs rely principally upon the case of Reichvalder v.Boro. of Taylor,
Judgment reversed and here entered for the defendant.