Et Ux. v. Lehigh Valley R. Co.

CourtUnited States State Supreme Court of Pennsylvania
Citation37 A.2d 429,349 Pa. 272
PartiesALTENBACH et ux. v. LEHIGH VALLEY R. CO.
Decision Date22 May 1944

349 Pa. 272
37 A.2d 429

ALTENBACH et ux.
v.
LEHIGH VALLEY R. CO.

Supreme Court of Pennsylvania.

April 17, 1944.
Rehearing Denied May 22, 1944.


Appeal No. 39, January term, 1944, from judgment of Court of Common Pleas, Northampton County, at No. 48, September term, 1942; McCluskey, President Judge.

Action of trespass by Walter J. Altenbach, Sr., and wife and by named plaintiff, as administrator of the estate of Robert Altenbach, a minor, deceased, against the Lehigh Valley Railroad Company, to recover damages for intestate's death by drowning as the result of falling into a reservoir constructed and maintained by defendant. From a judgment on a jury's verdict for $5,000 in plaintiffs' favor as individuals and $500 for plaintiff administrator, defendant appeals.

Modified by reducing the $5,000 verdict to $3,000, and affirmed as modified.

Before MAXEY, C. J., and DREW, LINN, STERN, PATTERSON, STEARNE, and HUGHES, JJ.

Edward J. Fox, Jr., and Fox & Barber, all of Easton, for appellant.

Carletorn T. Woodring, M. A. Stausburg, and Calvin F. Smith, all of Easton, for appellees.

MAXEY, Chief Justice.

This is an appeal from the refusal of the court below to enter judgment for the defendant n.o.v. or to grant a new trial, in an action of trespass for the death of a child.

The appellant constructed and maintained in a residential section of Easton for many years a reservoir to supply water and to furnish fire protection for its shops. It was constructed on an open lot bounded on the South by Wilkes-Barre Street, on the West by McKeen Street, on the North by Cooper Street and on the East by private premises. It had an area of 106 by 124 feet, and its greatest depth was about six feet. It was from 28.4 feet to 31 feet

37 A.2d 430

from the street curb line and was confined by an 8-foot bank. On the top of this bank the company erected around this reservoir a board fence 7 feet 6 inches high. The bank sloped steeply on the inside of the fence to the water's edge and on the outside to the pavement. The company placed ‘no trespassing’ signs on the four sides of the reservoir.

The plaintiff's infant son, Robert, three years and nine months old, and his brother aged five years, left their home on Wilkes-Barre Street about a block away from this reservoir at two o'clock on the afternoon of January 2, 1942. They proceeded to the reservoir, which was then frozen over, except at the intake value. The children had been away from home about one-half hour when the older boy returned seeking help, and he returned with his grandmother, to the reservoir. It was then discovered that Robert was under water at a point near the intake. Action was brought by the parents in their own right, and by the father as administrator of the decedent's estate, to recover for the child's death. The case...

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