Lead Opinion
This is an action in trespass by a father, as guardian of his minor child, and for himself and wife, for damages sustained by them as a result of personal injuries to the child at a playground conducted by defendant, City of Reading. The case has been tried twice. The first trial resulted in verdicts for plaintiffs, but, after argument, the learned court below awarded a new trial. The second trial also resulted in verdicts for plaintiffs. Defendant did not question the fairness of the trial or the amount of the verdicts by moving for a new trial, but did file a motion for judgment n. o. v. After that motion was discharged and judgments were entered on the verdicts, defendant took these appeals.
Viewing the evidence and all inferences deducible therefrom in the light most favorable to plaintiffs, as we are required to do in passing upon this motion for judgment n. o. v., the following appear to be the pertinent facts: During the summer months for many years, the Recreation Board of defendant Municipality conducted a public playground at 16th and Haak Streets, in the City of Reading, on premises owned by Reading School District. This playground, which was under the complete control and supervision of defendant's employes, consisted of a large open space adjoining a school building and also of a room in the basement of this school, 28 feet 5 inches long, 27 feet 5 inches wide *Page 214 and 9 feet high. A doorway and a descending flight of four steps led from the outdoor portion of the playground to this basement room. To the right of this doorway, a part of the room, 12 feet by 15 feet, was partitioned off for use as a boiler room, and ashes and rubbish were kept in one corner next to the partition. The remaining L-shaped space of the room was dimly lighted by five small basement windows. In one corner there was a handicraft table. Volleyball and badminton equipment, including shuttlecocks and racquets, as well as other playground material, were not stored away, but rather were lying in the open about the room, easily available to the children, who, with defendant's permission, frequented this room every day during playground hours. For a long time this room had been used for handicraft work and frequently some of the children played there with a volleyball or batted a shuttlecock back and forth with badminton racquets. That the children had played, for at least three weeks prior to the accident, with this badminton equipment in this room was known to the playground leader, Miss Gehris.
At about eleven o'clock on the morning of July 22, 1942, minor plaintiff, then eleven years of age, was lawfully in this basement room with one Richard VonNeida and eight other children. Seeing defendant's badminton equipment lying on the floor, Richard, who was also eleven years old at that time, suggested to minor plaintiff that they bat a shuttlecock back and forth between them with badminton racquets. Neither child had ever played the game of badminton. They proceeded to bat the shuttlecock to and fro, without a net between them. While they were thus playing, minor plaintiff stood inside the room with her back to the door and Richard faced her about seven feet away. Defendant's playground leader was on duty and present in the room when these children started their play and she remained there for some time thereafter, but she did not endeavor to stop them or to warn them of the *Page 215 possible danger involved. After playing for about five to ten minutes, minor plaintiff told Richard that she was quitting and tossed the shuttlecock to him with her hand and glanced away. Immediately, he batted the shuttlecock back again and the rubber part struck minor plaintiff in the left eye, injuring it so that, after several operations, it had to be removed.
Defendant maintains that it is entitled to judgment n. o. v. for three reasons: (1) that there was no negligence on its part; (2) that the proximate cause of the injury to minor plaintiff was the independent, intervening act of Richard VonNeida and (3) that minor plaintiff was guilty of contributory negligence as a matter of law. We shall examine these arguments in the order presented.
In considering whether defendant was negligent, our first inquiry will be to determine what duty of care our law places upon a municipality in regard to the safety of children-invitees present upon its playgrounds. In Paraska v.Scranton,
In Honaman v. Philadelphia, supra, and again in Stevens v.Pittsburgh,
The pivotal question in this case is: Did the evidence warrant the submission to a jury of the question whether or not defendant exercised reasonable care for the safety of minor plaintiff? Our answer must depend upon a detailed analysis of the factual situation. Defendant was operating this playground under the exclusive control of its playground leader at the time the injury occurred. She, representing the City, had the duty to use every reasonable effort to control the conduct of all the children present there that day, including that of Richard and minor plaintiff. Other children, playing in the room, testified that the playground leader was present there during at least part of the time that minor plaintiff and Richard were batting the shuttlecock to each other with the racquets and that she made no effort to stop them.
The place in which they were playing obviously was hazardous for such activity, by reason of the poor lighting conditions, and of the restricted space available (which was but a fraction of the size of a regulation badminton court). The result of their inability to move freely about was that each player attempted to hit the shuttlecock directly toward his opponent rather than away from him as in a normal badminton game. The manner in which minor plaintiff and Richard were playing was also dangerous. The close proximity of *Page 217 the children to each other,1 the use of an outdoor shuttle-cock with a hard rubber tip, instead of an indoor one with a cork tip in the still air of this room, and the absence of a badminton net, all were circumstances which helped to create a dangerous situation. The significance of the lack of a regulation net is that, when present, it offers some protection to the badminton players. When a shuttlecock is struck hard and follows a straight, flat trajectory toward the opposing player it is caught in the net which is erected between them. All these facts and circumstances, when considered together, show clearly that these children were allowed to continue playing in a situation of obvious danger.
There is no doubt that the playground leader knew that she had the authority and ability to control these children. However, the questions to be determined, under the facts of this case, are: Would a reasonably prudent person in her position have known of the necessity and opportunity for exercising this control, and, Was the conduct of the children a foreseeably dangerous activity which was creating an unreasonable risk of bodily harm to them? The answers to these questions are not so clear that they can be ruled on as a matter of law, but are questions upon which there may be a reasonable difference of opinion, and, consequently, are questions solely for determination by a jury. The jury found that defendant was negligent and we are of opinion that the testimony was more than ample to support its conclusion.
We find no merit in the second contention of defendant that the independent, intervening act of Richard VonNeida was the proximate cause of the injury to minor plaintiff. It was not extraordinary that Richard would strike the shuttlecock immediately when minor *Page 218
plaintiff tossed it to him the last time. Children must be expected to act upon immature judgment, 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: Rachmel v. Clark,
Nor do we agree with defendant's final contention that minor plaintiff was guilty of contributory negligence as a matter of law. She had never played badminton nor had she seen the shuttlecock used in the basement room. She did not realize that there was danger in the manner and under the conditions she was playing with Richard. While there was testimony that at times such play in the room was forbidden, there is no evidence that minor plaintiff knew of such prohibition. We have repeatedly said that only in clear cases, where the facts are settled and there can be no reasonable doubt as to the inferences to be drawn, can a court declare contributory negligence as a matter of law: McCreery v. Westmoreland Farm Bureau,
Judgments affirmed.
Mr. Justice PATTERSON filed a dissenting opinion in which Justice ALLEN M. STEARNE joins.
Dissenting Opinion
The law requires that a municipality shall exercise reasonable care in the maintenance of its playgrounds and in the supervision of their use by the public: Novak v. Ford CityBorough,
Restatement of Torts, section 318, cited by the majority, reads: "If the actor permits a third person to use land or chattel in his possession otherwise than as a *Page 220 servant, he is, if present, under a duty to exercise reasonable care so to control the conduct of the third person as to prevent him from intentionally harming others or from so conducting himself as to create an unreasonable risk of bodily harm to them, if the actor (a) knows or has reason to know that he has the ability to control the third person, and (b) knows or should know of the necessity and opportunity for exercising such control." (Italics supplied). Comment (b) under this section states: "The rule stated in this Section is applicablewhere the possessor of a chattel or of land is present when thechattel is being used or the activity being carried on with hispermission, and when therefore, he has not only the ability to control the conduct of the third person as possessor, but also the opportunity to do so." (Italics supplied). Regarding the duty to anticipate dangerous use, it is said, in Comment (c): "If the chattel is one which can be safely used only if extreme caution is employed, or if one in possession of land permits a third person to conduct an activity thereon which is highly dangerous unless great care is taken, he may properly be required to exercise constant vigilance to be able to exercise his control over the third person when and if the occasion for it arises. On the other hand, if the character of the chattelor its permitted use, or the activity upon the actor's land isof such a character as to be dangerous only under particularconditions and in particular situations, the actor is requiredto exercise vigilance only if there is a reasonable probabilitythat such a condition or situation will arise." (Italics supplied). And, in Comment (d), it is stated: "If the third person permitted to use the actor's chattel persistently uses it in a manner dangerous to others, the possessor may be required to terminate his consent to its use in order to escape liabilty for any harm done by the further dangerous use of the chattel." (Italics supplied). *Page 221
On the present record it is undisputed that appellant's playground leader was not present in the basement room at the time of minor appellee's injury. She left the basement room shortly after minor appellee and the boy started batting the shuttlecock to and fro, and had gone out onto the playground, to a handicraft table some distance away. There is no proof of anything occurring prior to the accident or during the play from which minor appellee's injury could have been anticipated by the most alert playground leader or attendant. The mere batting of the shuttlecock, which is all that occurred in the playground leader's presence, was not an inherently dangerous activity requiring constant vigilance. Almost daily for a period of three weeks prior to the accident the children had batted the shuttlecock in precisely the same manner and under exactly the same conditions, without injury to any child. Light was provided through five windows and the open door. The room was regularly used for handicraft purposes, and it may be assumed the lighting conditions were also adequate for the children to see each other and the shuttlecock as they batted it to and fro. True the batting back and forth of the shuttlecock by these children was not strictly in accordance with the rules governing the playing of a regulation game of badminton, in that they were using an outdoor shuttlecock indoors, without a net, and where the space available was less than specified for a regulation badminton court. But it cannot seriously be contended that any of these things constituted a violation of any rules designed for the safety of the players, for it is a matter of common knowledge that in badminton and similar games the play is frequently at close range, whether the game be played indoors or outdoors. So far as the record discloses, the space available and conditions were entirely adequate for the activity engaged in, which was not the playing of a regulation badminton game but the mere batting of the shuttlecock. Moreover, it was not during *Page 222 the course of the play that minor appellee's injury befell her.She had told the boy that she was quitting the game and tossedthe shuttlecock to him.1 Seeing that he held the shuttlecock in his hand, and assuming he had also quit, she glanced away, but the boy, who was then eleven years of age, despite minor appellee's announcement that she was unwilling to continue the game, which he heard, and despite the fact that she had turned her head away and was looking in another direction, which he observed, without warning and without cause batted the shuttlecock at her so that it struck her in the eye.2 Harm cameto minor appellee only after danger was created by thisimpulsive, unprovoked, prankish act of the boy, of whichnothing whatever in his prior conduct or that of minor appelleegave warning, after the game had been completed and at a time when appellant's playground leader was not present and therefore had neither the ability nor the opportunity to act.
There is nothing in any of the cases cited by the majority to warrant extending the range of liability *Page 223
to a situation such as that here presented. Paraska v.Scranton, supra, an appeal from judgment for defendant upon an affidavit of defense raising questions of law, decided only that the rule of municipal immunity for liability for negligent maintenance did not apply to accidents occurring in public playgrounds. Honaman v. Philadelphia,
In Clark v. City of Buffalo,
I would reverse the judgments and here enter judgments for the appellant.