*3 CIRILLO, President Judge, Before ROWLEY and WIEAND, JJ.
CIRILLO, Judge: President appeals This case consolidated from an order of involves sitting the of Pleas of Philadelphia County, Court Common banc, of denying post-trial appellant, City en the motions of (hereinafter L. Philadelphia “City”), appellants, and Andrew Castle, Reading and L. trustees for the Com- Joseph Lewis (hereinafter to pany collectively “Reading”). referred as mother, Scarborough and his Patricia Appellees, Edward against Reading this action in 1976 Scarborough, instituted injuries sustained Edward in a personal by recover to in Reading accident which occurred railroad train the as additional defendant and case City the an joined in Scarboroughs a favor the jury to verdict proceeded against defendants. and both 24, June summarized follows. On may
The facts be Scarborough, years age, then nine was 1974, Edward end a street dead-end owned playing basketball a through rolled hole by City. ball and maintained down an embankment which lead and continued in the fence to owned then railroad tracks and right way a and path leading There a down the by Reading. operated through Edward climbed or slid the tracks. slope toward down the and followed ball hole in fence ball, retrieve Edward going As he embankment. retrieved the ball and passing by. a Edward heard train fence, then and walked but turned carried it back moving boarded a Edward back down embankment. attempted rode a minute or two. Edward car and train train, fell underneath the wheels. Both but jump off amputated. were legs of Edward’s that Reading argue and the appeal, On both cognizable cause of legally appellees failed establish granted. n.o.v. should have action been judgment support in addition, raises numerous issues In and, granted trial must be alterna- argument new that delay excessive and tively, argues that the verdict was imposed. We will consider each damages improperly were appeal separately. appeal
I. The City’s it entitled City’s contention that was We first consider the Walsh our Court n.o.v. As stated judgment Company, Gas Water Pennsylvania Pa.Super. (1982): 58, 449 A.2d N.O.V., for judgment of a motion reviewing the denial inferences with all reasonable together
the evidence most light favorable must be therefrom viewed *5 62 winner; all conflicts in
verdict
the evidence are resolved
party. See Gonzalez v. United
the prevailing
favor of
Corp.,
Steel
States
277,
484 Pa.
398 A.2d
Borough
Aliquippa,
Mike v.
382,
Pa.Super.
(1980).
supporting
A.2d 251
Evidence
verdict
con-
Freeman,
Glass v.
and the rest rejected.
sidered
430 Pa.
“A
21,
(1968).
A of land is upon by trespassing an artificial condition children thereon caused land if (a) place exists is one which the where the condition likely are possessor reason to know that children knows or has trespass, and (b) possessor or has which the knows the condition is one of realize will involve which he realizes or should reason to know and bodily harm to such an risk of death or serious unreasonable children, and (c) youth not discover the condi- of their do the children because intermeddling with it or in in tion or realize the risk involved it, coming dangerous area made within the Inc., Advertising, door Pa.Commw. Yeager, Cousins v. 394 F.Supp. (E.D.Pa.1975).
However, it is clear that the trial court also agreed with this law, and, statement accordance with City’s re- quest, specifically charged the jury Indeed, to that effect. the trial court carefully limited the applicability Section 339 to the issue of Reading’s liability:
Now, members of the jury, possessor land —and this case the railroad possessed the land on which their were, tracks case; embankment in this the City was possessor of the bed of 13th Street —but this I am telling you regard to the issue with regard to the A possessor railroad. of land is subject to liability for physical harm to children thereon, trespassing even *7 though they are trespassing, there is still liability with regard to children trespassing thereon caused an by arti- land, ficial condition upon the if all of the following requirements or conditions are is, met. That plaintiff the under theory this must prove all of the following five conditions in order to prove that Reading the Company negligent, was though even he was a trespasser. Re- member, I you told hopping on the train would be a trespasser. These your would be five conditions ... Pennsylvania law,
Under the attractive nuisance doc- trine does not extend to impose on liability landowners for conditions which exist on an adjoining party’s third property. That is correct and affirmed for our purposes. Under Pennsylvania law, a defendant who land owns adjacent to a railway duty has no erect fence or other protective devices or provide warnings protect chil- dren who or play live on its land.
Under the in law Pennsylvania, a landowner is under no duty person to a passes who over his land as to a possible (d) utility possessor maintaining the condition and eliminating danger slight burden of compared are as involved,
the risk to children (e) possessor fails to exercise reasonable care to eliminate the danger protect or otherwise to the children.
65 is of another. That on land condition dangerous Pennsylvania. law of above, City’s liability is it obvious light Therefore, if this 339. even on Section premised not is cause to preserved, had without been
argument refusing court erred on complain appeal inapplicability of upon the n.o.v. based grant judgment Section argu persuaded City’s we are
Similarly,
granted be
n.o.v. should have been
judgment
ment
imposed
duty
improperly
to erect
the fence
cause a
law
no
imposes
It is
settled that
City.
well
land to erect
fencing
possessor
adjacent
duty upon
entering
from
persons
so
to deter
warnings
provide
Adver
Kearns v. Rollins Outdoor
party’s property.
third
Church,
Inc.,
v.
Baptist
tising,
supra; Maguer
174 Pa.
Rail Corporation,
Heller v. Consolidated
(Second) respect of Torts.5 With to this theory liability, charged court the jury as follows:
If, undertaken to having maintain the fence there was a care, failure to exercise if reasonable harm is suf- fered upon because other’s reliance that undertak- ing, then there bemay responsibility and liability.
If you find that the undertook to erect or maintain Streets, a fence at the end of 13th and McFerran you may then find that there an obligation to maintain that holes, fence properly; that is without as is contended by plaintiff. The City object failed to to the trial court’s Section 323 charge beyond requesting a supplementary instruction that there no upon evidence that Edward relied the fence to him keep off the tracks. an given. Such instruction was The issue of the trial application court’s Section facts the instant case was not addressed in City’s post-trial pursued brief and has not been on appeal. There- fore, we need not and will not consider it. We offer no opinion question gratuitous whether erection of a fence or other protective by possessor device of land adjacent dangerous to a condition or instrumentality gives rise to under liability person Section 323 when a is injured condition or as a instrumentality result a failure properly maintain the fence or device. See Hayes v. Co., 205, 212, Philadelphia Electric 92 Pa.Commw. (1985) (Kalish, S.J., A.2d dissenting). (Second) provides
5. Restatement of Torts as § follows: Negligent Undertaking Performance of § Render Services undertakes, consideration, gratuitously One who or for to render recognize necessary services to another which he should for the person protection things, subject liability of the other’s physical resulting the other for harm from his failure to exercise perform undertaking, reasonable care to his if (a) his failure to exercise such increases the risk of such care harm, or (b) the harm is suffered because of the other’s reliance undertaking. *9 argument final n.o.v. concerns City’s judgment The Philadelphia Depart of a Police treatment trial court’s the prior the Police Commissioner by issued ment directive argument n.o.v. only judgment This is the injury. Edward’s preserved for our properly the by City presented merit. it be without find review. We by the Police Commission was issued Police Directive report dangerous condi officers to police and directed er trial, sought preclude At City City property. on tions in limine. The through a motion use of Directive verdict, a con for nonsuit and directed moved City also comply failure to tending City’s alleged that the trial, of At the close not itself actionable. Directive was for binding points instructions and City requested form a that the Directive could not to the effect charge against by of As noted finding liability City. for a basis brief, “charged the the trial court City appellate in its Instructions.” Binding the City’s in accordance with jury 7. The record City Philadelphia, Appellant, Brief in specifically correctly the trial court reveals that not recover Scarboroughs that the could jury structed police protection to provide failure against City his to Edward in duty some breach of a owed absent of an merely not a breach overall capacity, and individual this, it is clear public.6 light obligation general to the liability of the could jury’s City’s determination created or premised upon improperly have been Directive Police by promulgation undertaken Therefore, simply n.o.v. judgment is not entitled plead prove cause Scarboroughs failed because 38.7 of action based on Directive that the trial court We next consider the contention City’s we Initially, trial. denied its motion for a new improperly Philadelphia, 320 generally 6. See Melendez Melendez Pa.Super. of the as evidence Directive 38 was admitted 7. The record reveals that inspection regard maintenance care with standard of of the City property. propriety trial court’s admission challenged appeal. Directive evidence is not into *10 the well established regarding reiterate rule the circum scope appellate applicable scribed review to a trial court’s granting denying order a new trial. grant The or denial trial subject of a new will not on appeal be reversal an either error of law which absent controlled outcome Martin v. case, Johns-Manville Corp., 154, of the 508 Pa. citing Anzelone v. Jesper 163, 1088, (1985) 494 A.2d 1093 son, 436 Pa. Allison v. Snelling & 28, Inc., Snelling, 519, (1967), 425 229 Pa. A.2d 861 or a palpable abuse discretion when the ruling turns on the Johns-Manville, Martin supra, weight evidence. Eidemiller, Inc., Lobozzo v. Adam citing Pa. 367-68, A.2d
The raises numerous issues in support its conten- new trial granted. tion that a must Our be consideration of one of these issues us to just leads the conclusion that a is required.8 new trial
The issue of Scarborough’s Edward contributory negli- was, gence obviously, a critical one at trial. Pursuant existing law, then court charged jury trial that Edward could not if jury recover that found Edward was contributorily negligent boarding the train and that negligence such bringing was a substantial factor in about his injuries. charged court further child is “held to that measure of care and caution and discretion which age, other children of the experience, intelligence, same and capacity development ordinarily would exercise.”9 The issue, light single of our determination of this trial new it is unnecessary City’s to consider the remainder of the trial new issues or issues, any, preserved to determine which of those if have been Likewise, appellate City’s review. need we not consider the conten- damages improperly delay tions that the trial court awarded or that verdict excessive. concerning 9. Substantial evidence was at introduced trial the extent to which seriously injured boarding Edward realized that be he could moving concerning trains. The evidence adduced trial the issue of contributory (1) negligence testimony Edward’s included that Ed- previously leg ward’s cousin had lost in a similar accident and that Scarboroughs losing the cousin had lived with the for some time after (2) leg; Scarborough’s deposition testimony his Patricia that "Eddie him;” young age (3) knew at a what the train could do to instructed, points charge, in its separate at three also court he boarded the train. trespasser when that Edward deliberations, returned the fol- jury During its What constitutes “Additional instructions. lowing request: aged 7 of a child part care’ on the ‘responsible i.e., is of the child at responsibility according law— trespassing?” what constitutes age to know this request, judge receipt jury’s Upon for an in-chambers collo- parties for all convened counsel acknowledged jury’s ques- The trial court quoy. meanings.10 to at least two Counsel susceptible tion was Scarboroughs the court’s answer suggested for the *11 asking “no,” jury simply arguing be should child old should know fourteen-year a seven to whether and City disagreed for the is. Counsel trespassing what goes into argued concept trespassing “the that age he knows at his is whether or not child concept of it doing, not in that something he should be doing him.” The further possibly that could hurt something not what the actual a child know argued may that while it should means, a child “knows where “trespasser” term “no” simple argued that Finally, be.” court, charge, not suffice because answer would boarding as a correlative “trespassing” used the term argued that “the Likewise, Reading train. counsel trespass- to know about responsibility that it’s his answer is age, child the same ing reasonably careful whatever cetera, et know about that.” experience, should addressed the colloquoy concluded the judge trial supplied): as follows jury (emphasis deliberating you of the address jury, Members when your as possible as little jury, my say it is desire to disapproved testimony he mother would have Edward’s that knew his given right-of-way have him a onto and would of his entrance “whipping” about it. had she found out judge During colloquoy, stated follows: in-chambers ought possible any you to miss THE COURT: I don’t think ques- meaning question. Think about double-barrelled tion. consideration, so I that don’t confuse you you lead into other fields.
You have asked me the following question: “What ‘responsible constitutes care’ on the part aged a child 14 according is, to law?” That that’s what you “i.e.” is, “Is it responsibility of the child age at this to know what constitutes trespassing?” ” My you answer is “no. The word trespassing is a legal word.
Does that answer your question?
(All jurors answered affirmatively.) Now, I you have answered so sufficiently that are you to proceed your satisfied with deliberations?
(Whereupon jurors all answer affirmatively.)
The law uses the term describe differences of certain people. you Are satisfied my additional instruc- tions? all
(Whereupon jurors affirmatively.) answer In considering the sufficiency effect of the trial court’s response the jury’s request for additional instruc- guided by tions we are several well principles. settled First, it is basic a fair trial the trial judge clearly define the issues in order the jury may have an Clark, intelligent those cases. Smith v. understanding *12 142, 411 Pa. (1963). 190 441 Indeed, A.2d our courts have long recognized that the primary duty of trial in judge charging a is jury clarify to jurors the issues so that the comprehend may the questions they are to decide. Smith Clark, v. supra; Bromberg Gekoski, v. 320, 410 Pa. 189 Hodgson v. Bigelow, 335 176 (1963); A.2d 497, Pa. 7 A.2d Smith, Wood v. 338 547, Pa.Super. 343 (1985). Absent clarification of the issues and the applica- tion the facts, to law the a fair trial is not present. Clark, Smith v. . supra.
Second, while there may be in situations which a trial judge may decline to questions put by jury, answer the a jury when returns on confusion, its own motion indicating
71 such additional instruc- give has the to court the trial to may necessary clarify think law as the court on the tions Oberhuber, v. Worthington or confusion. doubt jury’s the (1966). to 561, 563, 621 In order obtain a 215 A.2d Pa. 419 the jury’s court’s treatment of on the trial trial based new demonstrate in what moving party way must the question, Mauk, result. Nebel v. an incorrect error caused trial the 315, carry A.2d 249 To its burden 253 434 Pa. error and the connection the a causal between showing “substantial at result, moving must show least party the possibility incorrect after consideration is of an result question, in facts of the case with particular given to required to response to the nature of the attention also judge.” Reilly question put to particular answer Poach, 2, 522, 50, 52 525 at Note 323 A.2d Pa.Super. 227 when a (1974) (emphasis supplied). Finally, jury’s Note 2 disclosed, trial court misapprehension confusion determining how best to resolve must have discretion “ inci- ‘This discretion is an or misapprehension. confusion of trial and in the absence the mode and manner dent to ” Com- abuse, should rest the trial court.’ flagrant with v. Washington, 560, 568, monwealth Pa.Super. Fontaine, quoting Commonwealth v. (1980) A.2d 45, 47, (1956). The 128 A.2d above Pa.Super. confusion as principles apply jury stated when the exhibits v. Washington, the facts or the law. Commonwealth supra. case, find: principles above the instant we
Applying the the issues it was (1) fully comprehend did not jury resolve; (2) did little or response the trial court’s directed clarify jury’s nothing confusion evidenced (3) coupled jury’s comprehend, failure question; substantial response, trial court’s created at least a obtained; (4) the that an incorrect result was possibility error; (5) response trial court’s constitutes reversible refusing grant trial court abused its discretion Accordingly, trial. we reverse the order new *13 for a trial. court and remand this case new agree We the with and the trial judge’s assess question carried, that the jury’s least, ment a “double Indeed, meaning. barreled” the jury’s question is reason ably susceptible to several interpretations, example: (1) a ability “Does child’s know that he is in place where he belong does not constitute a deciding factor whether that intelligence child had the and capacity to appreciate the involved then danger or, and conduct himself accordingly?” (2) law, “As a matter of must a seven to fourteen-year old be of capable understanding the of concept trespassing (3) he may negligent?” or, before be contributorily “Must a child able to word “trespassing” be actual in its define legal may sense before he contributorily negligent?” or, be (4) “How does a child’s ability understand his status as an impact entrant on land our application of the applicable or, (5) of care?” standard “What is the standard of care for a this age?” child of It is because of precisely this or multiple “double barreled” meaning that the trial a response court’s answer could suffice as jury’s request additional instructions. that trial supplemental
We believe court’s instruction and allowed invited to more jury merely do than con- clude that a old fourteen-year seven to child is not charged with the of responsibility successfully defining under- standing the term “trespassing” “legal actual as a word”. The instruction created a substantial that possibility jury would draw the alternate and incorrect conclusion that age may child never held capable be under- standing the concept trespassing. Under the circum- stances, misapprehension such a on the part of the jury could have been of contributory negli- fatal the issue gence inasmuch it is reasonably apparent as from two part question jury had somehow a connec- drawn (1) tion responsibility between the child’s ability (2) trespassing, understand the child’s exercise “re- Thus, sponsible care.” (that the incorrect conclusion a child age of like charged responsibility never understanding “trespassing” concept) quite possibly led the equally incorrect a child conclusion such *14 recog- The trial court contributority negligent. be cannot but question, nature of the and dual dangerous nized the implica- recognize the or failed broader ignored either doing, response. the chosen so the question tions of clarifying its of the primary court trial breached the comprehend questions the it the could jury issues so that Poach, supra (re- Reilly to resolve. See was directed or reinstruct could clarify refusal error when versible care). wrong standard of jury apply cause the easily Moreover, if the sec- the court’s narrow answer even in a was correct technical jury’s question half of the ond or address the broader sense, clarify the trial court failed to question. first of The jury’s the half the presented issue in- additional clearly represents request first half structions consti- the crucial issue of regarding “[w]hat aged a child 7 to responsible part care on the of tutes nature, jury’s the re- according By very to law its ...” possibility the of confu- evidenced at least substantial quest misunderstanding applicable to the respect sion or with contributory negligence as standard care it related case, Therefore, facts of this it particular issue. under the We court to the issue. upon clarify was incumbent this, accomplished have easily the court could believe the facts of the case without alluding without summarising repeating or even prejudice-'to any party, by the issues of contrib- instructions on original substantive negligence of care. utory standard of the issues Scarboroughs argue that resolution The could not have affected jury’s request raised legal inasmuch Edward’s City’s liability issue of the scope only status as an entrant land related Reading’s duty under dis- Restatement Section We some- apparent jury To it is agree. contrary, trespasser status how entwined issue Edward’s fortiori, and, with the “responsible care” issue contributory negligence. issue of Edward’s citation Scarboroughs adopt trial court’s Lines, Inc., Highway Express Link v. 282 A.2d Pa. (1971) proposition for the that a trial court’s actions cannot when judge be erroneous correctly answers a jury’s question on the judge’s assumption based of the meaning of question. We consider this an overly broad reading of that case. Link does not stand for the proposi- cases, that, tion in all there is no error when the judge question his correctly answers based on or her assumption of the meaning question. First, there is no indication appellants challenged Unk the soundness of the *15 trial assumption. Here, court’s basic trial judge’s as- sumption Second, vigorously challenged. is such a broad reading of ignores primary duty Link of the trial court which, as stated is previously, clarify to the issues. More- over, it appear would in decision Link at turned least in part appellants’ tacit agreement to the judge’s to its prior Id., answer submission to the jury. Pa. at agreement 282 A.2d 729. No such is evident here.
In opinion, great court attaches signifi repeated cance to the jury’s indications of satisfaction with the judge’s However, “additional instructions.” we fail to see expression how the jury’s of satisfaction with the trial court’s in response dispositive itself of the issue at hand. question merely is not the jury whether was “satis fied,” but whether trial court by failing clarify erred the issues so as to avoid the substantial of possibility an incorrect result. we Here, believe that the trial court’s supplemental instruction did little clarify the issues and instead made an incorrect substantially result if possible, not probable. Accordingly, we remand a new trial. II. Reading’s appeal
Reading argues that it to judgment was entitled n.o.v. because, view, in its the Scarboroughs failed to a establish cause of action (Sec- under Section 339 of the Restatement ond) Torts, of applicable or under principles of common law permissive railroad relating crossings. We negligence agree.11 339 is applicable
Assuming arguendo that Section of involving moving right a train on a it is way, to a case Dugan Supreme holding clear our Court’s that quite Co., 25, 127 (1956) A.2d Railroad 387 Pa. Pennsylvania in this case. In order under Section 339 precludes recovery cognizable negligence cause of action to establish each that plaintiff satisfy must under Section (d) requirements. requires five Subsection specific section’s possessor maintaining to the utility proof eliminating danger and the are condition burden the risk children compared with involved. slight supra, Supreme our Court held on similar facts Dugan, (d) had not satis requirements subsection been law, approval as a quoted fied matter (d): following comment subsection explanation 339 makes of clause The comment this § (d): “In condition main- determining particular whether a he knows to be possessor tained land which trespasses of children involves an unrea- subject them, risk comparison recognizable sonable *16 children, possessor utility risk to the condition, maintaining importance. is of The peculiar possessor’s in the free use of his land for public interest A great is- of purposes importance. particular his own is, therefore, regarded involving condition as not unrea- risk it trespassing children unless involves sonable any without risk to grave them which would be obviated use legitimate serious with the possessor’s interference land.” his Id., in 32-33, (Emphasis Pa. 347. A.2d at Dugan, hold, We in original). accordance with in interest utility operations public of railroad and the outweigh the risk right way Railroad’s free use of the arguments appeal Scarboroughs City present on 11. Neither the nor opposition Reading’s judgment n.o.v. The Scarbor- in demand for Company oughs Reading a tortfeasor settlement and the entered into 13, and release on October Further, as did the Court Dugan, supra, involved. we involved, risk although grave, hold that the could not have serious obviated without interference with the Rail- been use of the legitimate right-of-way. road’s til] opinion, attempted court to avoid the impact Dugan Reading’s liability by charac- obvious terizing dangerous as artificial condition for fence purposes opposed moving Section 339 as train itself. First, patently Such a characterization is erroneous. as previously, stated it is well settled that a railroad has no duty right-of-way prevent to fence its trespassing by children. Dugan, supra; See Malischewski v. Pennsylva- Co., Second, supra. nia Railroad Section 339 applies to “upon artificial conditions the land” of the party against not, here, sought is recovery whom to artificial adjacent conditions on the land of owners. property We will not this discussion with further burden consideration of point. this next consider the Scarboroughs
We whether established a cognizable cause of action under their second theory of liability against Reading. Scarboroughs contended that the accident site a permissive crossing and that Read- ing negligent failing keep a proper lookout. situation,
In permissive crossing railroad’s (a) consists of keeping persons using a lookout to see if are (b) the permissive crossing, warning users of the train’s approach, (c) taking stop action to the train before if reaching permissive crossing persons are it. using Co., Figard v. Railroad 361 Pa. 65 A.2d Pennsylvania However, once a train reaches and enters the permissive crossing, its presence warning sufficient persons it, intending to use and no further action Railroad, railroad is necessary. Celia v. Pennsylvania 364 Pa. Bessemer, Hogg v. Pa. *17 Yazvac v. Baltimore and Ohio Railroad, (W.D.Pa.1972). F.Supp. Applying these principles case, to the facts of the instant it is clear that the Scarboroughs failed to establish a cause of ac- cognizable negligence and the doctrine of on common law tion based crossings. permissive adduced at trial convinc-
First, of the evidence our review permissive not a question area in es us Therefore, contend. Scarboroughs now crossing as no in the instant application duties have enumerated above Second, that the area was a assuming arguendo matter. clearly record establishes that the permissive crossing, the the area began passing through entered and train before position train from his near approached moving Edward Thus, the Railroad to fence. there was no owed Edward’s own question. Finally, at the time Edward that he never intended to cross the testimony establishes tracks, moving train. There- leap but rather to aboard crosser, event, fore, permissive Edward was not a any permis- the doctrine of theory liability upon and a based inapplicable. crossings wholly sive Scarboroughs legally cognizable failed to establish a 339, Restatement, Sec- upon cause of action based Section ond, Torts, negligence principles. common law Therefore, the order of the trial court insofar as we reverse n.o.v. Reading’s judgment it dismissed motion appellants reversed as to Castle and Lewis. Order Order Philadelphia’s judg- motion for denying appellant City City of denying appellant ment n.o.v. affirmed. Order motion for new trial reversed. Remanded for Philadelphia’s relinquished. new trial. Jurisdiction WIEAND, J., dissents.
WIEAND, Judge, dissenting: nine old year
In to a involving injuries this case serious car he had moving who from a railroad which boy jumped before, granted has “hopped” majority a short time against respect new trial with to the verdict to estab- the evidence failed Philadelphia. my judgment, responsible Philadelphia legally lish that the therefore, conclude, that a I this unfortunate accident. *18 n.o.v. should have in judgment been entered favor of the City. 4, 1974, nine year
On June old Edward Scarborough leg sustained severe injuries jumped when he from a mov- ing railroad car which he had boarded while playing upon property by Reading owned The Company. boy had access to the tracks gained by climbing railroad through a in link hole a chain fence which had by been installed Philadelphia at the City end Thirteenth and McFerran mother, Streets. Edward’s Patricia Scarborough, com- menced an action in on trespass behalf of her son and in her right against Castle, own Andrew L. Lewis and Joseph L. Reading trustees of the Company, alleging Reading’s negli- gence operation in its of the train in and its failure to take measures to adequate prevent plaintiff the minor from gaining Thereafter, access to the railroad tracks. the City Philadelphia joined was as an additional defendant on grounds that it had failed to keep repair the fence had thereby duty breached owed to the minor to protect him from the dangerous condition created by movement of trains on the railroad’s property. trial,
Throughout the
the City contended that the
did
law
impose
it a
duty
protect
the minor plaintiff from
dangerous
being
activities
conducted on land owned by
another. The City moved for a
non-suit
compulsory
at the
case,
close of
plaintiffs’
the motion
but
was summarily
by
rested,
denied
the trial court.
parties
After both
had
City moved for a directed verdict. This
also denied.
also
City
points
charge
submitted
requesting the
trial court to instruct the jury
City
owed no
repair defective conditions maintained on property not
owned
City
protect
or to
citizens from dangerous
activities
private
conducted on
property by
persons.
other
The alleged failure of the evidence to establish a legally
cognizable cause of
against
City
again
action
raised
by the
in a
post-trial motion for
n.o.v. Final-
judgment
ly, whether the City breached a
duty owed
minor
plaintiff and thereby
him for injuries
became liable to
land,
playing upon
sustained while
railroad’s
has been
therefore,
It
argued
appeal
appears,
this Court.
alleged
has raised the
legally
nonexistence of a
cognizable
against
cause of action
it at every opportunity.
therefore,
The nature of the
is an
City’s duty,
issue which
preserved
has not been waived but which has been
our attention.
Be-
appellate
review
which deserves
otherwise,
I
majority
respectfully
cause the
holds
dissent.
*19
rule,
general
municipality
duty
As a
a
has no
to erect a
to deter
on the streets of the
persons
municipality
fence
adjacent property. Kearns v. Rollins Out
entering
from
Inc., 89 Pa.Cmwlth.
Advertising,
door
imposed upon
The law has not
municipality
duty
fencing
protective
erect
or other
devices to deter
tres
to
entering
children from
the
of a third
passing
property
encountering
dangerous
and there
condition not
person
by
municipality
created or maintained
the
and over which it
has no direct control. Kearns v. Rollins Outdoor Adver
Inc., supra. See also: Heller v. Consolidated Rail
tising,
Corp.,
aff'd,
(E.D.Pa.1982),
(3d
It contended that when by street, undertook to erect a fence at the end of its if thereby causally injured it became liable a child were keep failure thereafter to the fence City’s because upon relied 323 of repair.1 Specifically, plaintiffs Section plaintiffs 1. The also at trial that the should be held contended discover, city by failing report repair police, liable because the to or Streets, the defect in the of Thirteenth and McFerran fence at end duty Scarborough protect from the had breached their dangers to Edward property by owned the railroad. which awaited him on the clear, however, provide protec- police owe no to law is public any particular absent the existence of a tion to "special member of the police. relationship” individual and the See: between that (Second) Torts, which as provides Restatement fol- lows: undertakes, consideration, or for gratuitously to
One who recognize he another which should render services protection person other’s necessary for physical to the other for things, subject liability from his failure exercise reasonable resulting harm if perform undertaking, his care care (a) his to exercise such increases the risk failure harm, or of such of the other’s reliance
(b) the harm is suffered because undertaking. upon for harm recognizes liability resulting section
This may to exercise reasonable care result from the failure (1) care has in- the failure exercise reasonable where (2) harm is harm or suffered because creased risk of In the instant undertaking. reliance of the other’s case, however, neither of these elements was established plaintiffs’ evidence. repair proof City’s
There no failure *20 such hole in the fence increased the risk children as 59, Pa.Super. Philadelphia, A.2d City 320 466 1060 v. Melendez 281, City Philadelphia, Pa.Super. 290 434 A.2d Chapman v. (1981). relationship 251. Such a will § 753 See also: 57 Am.Jur.2d precise only police are the the aware of be found to exist where protect they him danger facing individual and undertake to supra, City Philadelphia, specific harm. her from that Melendez case, instant Pa.Superior 466 at 1063-1064. In the Ct. at A.2d relationship special that a had existed between there was no evidence City Department of of Philadel- plaintiff the minor and Police phia. by plaintiffs argued had created Police that such a been The municipal corporation argument A is lacks merit. Directive 38. This damages negligent execution and enforcement of for the not liable Philadelphia, City by police Wecksler v. officers. its ordinances 496, 501, See: 57 Am.Jur.2d Pa.Super. 115 A.2d 113, 114; School, Liability, §§ 63 C.J.S. Municipal, and State Tort Likewise, subject it will not be to Municipal Corporations, § police regulations. See: liability negligent Id. enforcement (The regulations city enforced in are not made and police of a § city capacity, in the interest of corporate in its but of the the interest liable, therefore, city for the of its officers in public. not acts A regulations). attempting enforce such yard the railroad and be enter Scarborough would Edward worst, the very City's At the moving train. a by injured created the same risk of children the fence repair failure if as have existed the railroad tracks would upon entering the chain to erect and maintain not undertaken had City Moreover, the evidence end of the street. at the link fence Scarborough boy the harm to clearly that established to maintain upon reliance from his did not result placed had neighborhood in the the fence. Children Thirteenth and McFerran Streets. and basket backboard 24,1974, when there on June Scarborough playing had been em- fence and down an through rolled the basketball Reading Company. of the to the railroad tracks bankment it, it to the ball, top and returned retrieved He followed train, he moving he heard a Because of the embankment. he again, jumped once to the tracks where then descended riding the moving of a train. After one of the cars aboard from the attempted jump he period, for a brief train disastrous, proved attempt jump His moving train. fell beneath however, amputated they were legs and his from these moving apparent train. It is the wheels was not young boy came to the that the harm which facts him or prevent the fence to result of his reliance the railroad tracks. ball descending from his ball retrieved, Scarborough safely had returned had been deci- did he make an affirmative then Only street level. having relationship no whatsoever decision sion—a in it—to return to the fence or the hole existence of the so, intentionally he freight. hop tracks and doing erected fence which had been ignored the inherent and also the risks the thrill encountered willfully in. moving train. The fence was off a on and jumping *21 risks, and the Scarborough from such protect to intended so. I it to do rely upon that he did not is clear evidence City the conclude, therefore, liability against that would 323 of on Section properly cannot be based Restatement (Second) Torts. of clear, moreover, repair City’s failure
It seems legal proximate not the cause of Scarbor- the fence was observed, As already have the basket- ough’s we injuries. and to the street when retrieved returned had been ball ride to return to the tracks and Scarborough determined fence, hole, The even without was not train. passing and, indeed, prevented could not prevent have intended to realizing desire to ride the train. from this Scarborough existed that access to tracks The evidence was clear if an or child ways and in various adult points various short, the railroad tracks. descend to wished Thirteenth and McFerran Streets was intended fence at Scarborough railroad Even access tracks. prevent and, fact, had access to he could achieved conceded that purpose boarding for the of prior occasions the tracks Therefore, assuming purposes even of trains. passing maintained the chain City negligently argument fence, superseded by voluntary negligence link Scarborough, after he decision Edward and deliberate ball, to safely the loose return had returned engaging sport of in the purpose for the railroad tracks law, a matter under passing train. As hopping thrill of circumstances, City Philadelphia cannot be held these minor sustained when he injuries plaintiff liable to the was entitled moving from a train. jumped n.o.v., trial denial thereof was and the court’s judgment error. entry remand for the
I judgment would reverse Philadelphia.2 in favor judgment conclusion, unnecessary decide the issues I find it 2. Because of this City’s for new trial. raised in the motion