Dugan v. Pennsylvania R. Co., 330 and N

• Decision Date: 12 November 1956
• Docket Number: No. 330 and N,330 and N
• Citation: 387 Pa. 25,127 A.2d 343
• Parties: Daniel DUGAN, a Minor, by his Parents and Natural Guardians, Daniel Dugan and Helen Dugan, his Wife; and Daniel Dugan and Helen Dugan, his Wife, in Their Own Rights, v. The PENNSYLVANIA RAILROAD COMPANY, Appellant ino. 331 (two cases).
• Court: Pennsylvania Supreme Court

Page 343

127 A.2d 343

387 Pa. 25

Daniel DUGAN, a Minor, by his Parents and Natural Guardians Daniel Dugan and Helen Dugan, his Wife; and Daniel Dugan and Helen Dugan, his Wife, in Their Own Rights, v. The PENNSYLVANIA RAILROAD COMPANY, Appellant in No. 330 and No. 331 (two cases).

Supreme Court of Pennsylvania.

Nov. 12, 1956.

Rehearing Denied Dec. 21, 1956.

Robert M. Landis, Philip Price, Philadelphia, Barnes, Dechert, Price, Myers & Rhoads, Philadelphia, of counsel, for appellant.

Richter, Lord & Farage, B. Nathaniel Richter, Charles A. Lord, Richter, Lord & Levy, Philadelphia, for appellees.

Before STERN, C. J., and JONES, BELL, CHIDSEY and MUSMANNO, JJ.

CHIDSEY, Justice.

This is an action in trespass brought on behalf of Daniel Dugan, a minor, by his parents and by them in their own right to recover damages for serious injuries which the minor sustained from an overhead electric power line when he climbed to the top of a train of the defendant Pennsylvania Railroad Company, stopped temporarily at a signal on one of its main line tracks. The jury returned a verdict in favor of the minor plaintiff for $40,000 and for his parents in the sum of $10,000. The defendant filed a motion for a new trial which was withdrawn and a motion for judgment non obstante veredicto which was dismissed by the court below. From the final judgment entered on the verdicts for the plaintiffs, defendant has appealed.

The proper determination of this case depends on the application of § 339 of the Restatement, Torts, to the evidence presented at the trial. The area where this accident occurred may be described as follows: On 67th Street between Elmwood Avenue on the south and Woodland Avenue on the north, in the City of Philadelphia, there is a bridge which goes over the defendant's electrified four-track main line between New York and Washington, on which freight and passenger tracks at this point run east and west. On the east side of 67th Street as one proceeds in a northerly direction towards the bridge there is John Bartram High School. Immediately to the north of the school is a high cyclone fence owned and maintained by the Philadelphia Electric Company. This fence separates the school property from a strip of land, between 40 and 46 feet wide, owned by the electric company between 66th and 67th Streets on the Elmwood Street side of the railroad right-of-way, and runs up to the bridge. On the north side and below the electric company's property is the railroad right-of-way which extends 50 feet, north and south, from the center line of the four tracks. For some time prior to the accident there had been a hole in the gate of the electric company's fence and the gate, which is immediately adjacent to 67th Street, was sometimes left open. Just inside of the fence and opposite the gate, is a 63 foot high tension tower owned by the Philadelphia Electric Company. On the steep banks leading down to the railroad tracks are hedges and undergrowth where, according to plaintiffs' evidence, children frequently played. Immediately east and next to the abutment of the bridge is a concrete sluice leading part way down the embankment. Bridges for pedestrians and vehicles cross the tracks overhead at 71st, 70th, 67th, 65th, 63rd and 62nd Streets, and a foot bridge crosses at 66th Street. On both sides and on the street level of the 67th Street bridge are high, solid sheet metal fences which appellees admit in their brief made it impossible for anyone to reach the railroad's electrified, catenary wires running underneath the bridge. On these metal fences are signs that say 'danger, live wire, keep off'. From 160 to 200 passenger and freight trains--one every nine minutes--daily pass in both directions on the railroad's tracks at this point at speeds up to 75 miles per hour. The two northernmost tracks are used for trains proceeding toward Washington, while the two southernmost tracks are for trains moving toward the center of Philadelphia. Train movements in this area are controlled by defendant's signal tower operator at Brill Tower in the vicinity of 61st Street. Because of train movements in and out of the Grays Ferry yard area which is to the east of Brill Tower, trains on the second track going toward Philadelphia are sometimes stopped at the signal bridge near 62nd Street. Evidence adduced by plaintiffs showed that when and how long trains might be stopped in transit by the Brill Tower operator was unpredictable and depended on conditions as they arose. During the month immediately preceding the accident the train in question, known as ME-2, passed under the 67th Street bridge practically daily and was delayed six times for periods of 8, 11, 14, 17, 44 and 59 minutes.

On the day of the accident, a Saturday afternoon, the injured minor, who was 11 1/2 years old, left his home with his 8 year old brother for the purpose of going to the movies. They walked north on 67th Street until reaching the 67th Street bridge where they climbed through the hole in the electric company's gate and played around the hedges and the concrete sluice for approximately one-half an hour which, according to their testimony, they had done on a number of occasions before. A long freight train, ME-2, consisting of 61 cars and extending about three-fifths of mile in length, was standing on the second track. The minor plaintiff could not see either end of it from where he was standing at the foot of the 67th Street bridge. This freight train was temporarily stopped because of train movements ahead for approximately 44 minutes. Desiring to cross the tracks so as to continue on to the movies, the minor plaintiff crossed over the first track and climbed up the side ladder of one of the box cars located one or two car lengths east of the bridge. Arriving on top, he pointed to the overhead catenary wire, which was approximately 19 feet above the track level carrying 11,000 volts, and warned his brother not to fool around with it. At this point, it was testified, a spark jumped or arced from the wire to the plaintiff's wrist, inflicting serious and permanent injuries. There were no witnesses to the accident except the minor plaintiff and his little brother.

At the trial, in addition to the above facts, the testimony offered by the plaintiffs, which must be interpreted most favorably to them, disclosed that for several years children had frequently played on the embankment next to the 67th Street bridge, hiding in the hedges, digging holes, and sliding down the concrete sluice. There was also testimony from which the jury could find that children sometimes crossed over the top of box cars standing at this point. ¹ The minor plaintiff, although described by his attending physician, a witness on his behalf, as a 'very brilliant child', testified that he had never heard of a live wire and that he knew nothing about the ability of electricity to arc from such a wire. ² To establish defendant's liability, the plaintiffs seek to bring the case within the rule set forth in § 339 of the Restatement, Torts. This section of the Restatement supersedes and supplants the doctrine of 'attractive nuisance' and the 'playground rule'. Thompson v. Reading Company, 343 Pa. 585, 23 A.2d 729; McGill v. United States, 3 Cir., 1952, 200 F. 2d 873; Prosser on Torts, § 77. It has been termed 'The best statement yet made' of the principles under which a possessor of land will be held liable to trespassing children for bodily harm caused by artificial conditions maintained thereon. Prosser on Torts, supra, at p. 620. There can be no doubt that § 339 has been adopted in toto by this Court and is the law in this State; it has been cited, with approval, numerous times ³ by this Court. In Bartleson v. Glen Alden Coal Company, 361 Pa. 519, 529, 64 A.2d 846, 851, Mr. Justice Linn said for this Court: '* * * To the extent that past cases are in conflict with the view of section 339 of the Restatement of the Law of Torts, which we have adopted, they are no longer authority. * * *' The issue here is whether the evidence presented by the plaintiffs at the trial brings the case within § 339. We think it does not.

Section 339 provides: 'A possessor of land is subject to liability for bodily harm to young children trespassing thereon caused by a structure or other artificial condition which he maintains upon the land, if (a) the place where the condition is maintained is one upon which the possessor knows or should know that such children are likely to trespass, and (b) the condition is one of which the possessor knows or should know and which he realizes or should realize as involving an unreasonable risk of death or serious bodily harm to such children, and (c) the children because of their youth do not discover the condition or realize the risk involved in intermeddling in it or in coming within the area made dangerous by it, and (d) the utility to the possessor of maintaining the condition is slight as compared to the risk to young children involved therein.' The Restatement thus lays down four requirements, all of which must be met before a possessor of land is liable for injuries to trespassing children. Verrichia v. Society Di M. S. Del Lazio, 366 Pa. 629, 79 A.2d 237; Jennings v. Glen Alden Coal Company, 369 Pa. 532, 87 A.2d 206.

There was evidence in the present case, sufficient perhaps, ⁴ to go to the jury, to meet the conditions of clauses (a), (b) and (c) of § 339. But the evidence intended to satisfy the condition of clause (d) was not such as to make this element also a jury question.

The comment in § 339 makes this explanation of clause (d): 'In determining whether a particular condition maintained by a possessor upon land which he knows to be subject to the trespasses of children involves an unreasonable risk to them, the comparison of the recognizable risk to the children, with the utility to the possessor of maintaining the condition, is of peculiar importance. The...