Colligen v. Philadelphia Electric Co

• Decision Date: 21 June 1930
• Docket Number: 199,196
• Citation: 151 A. 699,301 Pa. 87
• Parties: Colligen et al., Appellants, v. Philadelphia Electric Co
• Court: Pennsylvania Supreme Court

151 A. 699

301 Pa. 87

Colligen et al., Appellants, v. Philadelphia Electric Co

Nos. 196, 199

Supreme Court of Pennsylvania

June 21, 1930

Argued April 23, 1930

Appeals, Nos. 196 and 199, Jan. T., 1930, by plaintiffs, from judgment of C.P. No. 2, June T., 1928, No. 561, for defendant n.o.v., in case of John Colligen, by his mother and next friend, Catherine Colligen, and Catherine Colligen, in her own right, v. Philadelphia Electric Co. Affirmed.

Trespass for injuries to boy ten years old. Before STERN, P.J.

The opinion of the Supreme Court states the facts.

Verdict for plaintiff. Judgment for defendant n.o.v. Plaintiff appealed.

Error assigned was judgment for defendant n.o.v., quoting record.

The single assignment of error presented by appellant directed against the entry of judgment non obstante veredicto is overruled, and the judgment is affirmed.

Samuel P. Lavine, with him Leo Weinrott, for appellant. -- Defendant was under a duty to use the highest degree of care consistent with the practical operation of its outdoor substation Green v. Rys., 246 Pa. 340; Lynch v. Electric L., H. & P. Co., 268 Pa. 337; Fitzgerald v. Edison E.I. Co., 200 Pa. 540; Mullen v. Gas Co., 229 Pa. 54; Donnelly v. Lehigh N.E. Co., 258 Pa. 580; Daltry v. Electric Light Co., 208 Pa. 403; Novack v. Boro., 292 Pa. 537; Kay v. R.R., 65 Pa. 269; P.R.R. v. Lewis, 79 Pa. 33; Costanza v. Coal Co., 276 Pa. 90; Nichol v. Telephone Co., 266 Pa. 463; Smart v. Telephone Co., 83 Pa.Super. 419; Bowser v. L., H. & P. Co., 267 Pa. 483.

John P Connelly, for appellee. -- This was not an attractive nuisance. There was no evidence to show that it was a nuisance of any kind. It is true the children played on this ground, but there is no evidence to show that, so far as the electric company is concerned, it permitted or allowed children to play on this outdoor substation: Blackstone v. Light & Power Co., 249 Pa. 519; Thompson v. R.R., 218 Pa. 444; Kosson v. Power Co., 293 Pa. 131.

Before MOSCHZISKER, C.J., FRAZER, WALLING, SIMPSON, KEPHART, SADLER and SCHAFFER, JJ.

OPINION

MR. JUSTICE FRAZER:

Plaintiffs, a minor, and his mother in her own right, sued to recover damages for personal injuries sustained by the son, alleged to have been caused by negligence of defendant, or its agents or employees, in permitting an electric transformer building, it had erected and was operating at the time, to be and remain in an unsafe and dangerous condition. The jury returned a verdict in favor of plaintiffs. A motion by defendant for judgment non obstante veredicto was sustained by the court in banc, and final judgment entered for defendant. Plaintiffs' appeal followed.

Defendant company erected on property of the Breyer Ice Cream Company, located in the City of Philadelphia, an electrical substation from which to supply electric current to that company for use in its business. The electric substation, which was approximately seven feet distant from a building of the ice cream company, was constructed wholly of sheet iron, with smooth exterior surfaces, was nine feet high, thirty-nine feet long and ten feet wide, in which were inclosed electric transformers of high voltage. The structure was without roof, the transformers however were covered and encased in sheet iron, their height being somewhat less than the height of the building; a steel girder extended immediately above the transformers from one end of the structure to the other. The only entrance was by means of cast iron doors, which were kept locked, or by the use of ladders with which to reach the structure's top from the outside. The building was located entirely upon ground owned by the ice cream company, no portion of the area of land here involved was owned or rented by defendant. Children of the neighborhood for nine years previous to the accident were accustomed to play upon the adjoining property of a railroad company and the premises of the Breyer Company, near by the latter's buildings and the electric transformer box. It does not appear that at any time, before the day of the accident to plaintiff, had any child attempted to climb by any means to the top of the substation. The testimony of witnesses sustains the presumption that the hazardous nature of the interior of the building was known to those using the premises as a playground; and signs reading "Danger, Do not climb," in large letters, were posted on its outside walls, which all witnesses, except plaintiff, had, as they testified, often seen and read. Plaintiff who had played there many times, claimed he had never seen them, although ten years old at the time of the accident, attended school, was in the forth grade and could read.

On the day of the accident, during daylight, plaintiff and a boy companion, after romping for some time on the low roof of the ice cream manufactory, planned to climb to the top of the adjoining transformer box, a few feet distant from the former building. To accomplish this they secured a ladder at the ice cream factory, carried it to the electric transformer building, leaned it against the sheet iron side, or end, of that structure, but discovered it was too short to permit reaching the top of the wall. According to plaintiff's story, they then "noticed a big ladder" standing against the wall at another part of the structure, which they used, plaintiff preceding his companion. They reached the girder which they proceeded to walk along, above the electric transformers. While thus moving, plaintiff's body touched a wire or other part of the apparatus, as was explained by his companion, who followed him on the girder, receiving a shock which caused him to fall into the interior of the box. Aid came immediately, the locks were broken from the door and the boy removed, seriously injured.

Leaving aside for the moment the matter of the particular ladder by which the boys reached the top of the transformer box, the record clearly establishes that as to the construction and operation of the substation, defendant could not be charged with negligence. No fault in the construction was shown; and with the sheet iron doors continually locked, with smooth perpendicular sheet iron sides and ends reaching over nine feet above the ground, and up which neither adult nor child could climb, it cannot be said with any degree of fairness that the structure, as it stood, was a dangerous object. Nor was the absence of a...