Gillespie v. McGowan

• Decision Date: 24 April 1882
• Citation: 100 Pa. 144
• Parties: Gillespie <I>versus</I> McGowan.
• Court: Pennsylvania Supreme Court

100 Pa. 144

Gillespie versus McGowan.

Supreme Court of Pennsylvania.

March 21, 1882.

April 24, 1882.

March 21st 1882.

Before SHARSWOOD, C. J., MERCUR, GORDON, PAXSON, TRUNKEY, STERRETT and GREEN, JJ.

ERROR to the Court of Common Pleas No. 3, of Philadelphia county: Of January Term 1882, No. 170.

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R. Alexander, for the plaintiffs in error.—The court below erred in instructing the jury that "a child cannot be treated as a trespasser or a wrong-doer." Cauley v. R. R. Co., 9 W. N C. 505; Duff v. R. R. Co., 9 W. N. C. 504; Moore v. R. R. Co., 11 W. N. C. 310. Where a parent sues for the loss of the services of a child of tender years, or an adult sues for personal injuries, there can be no recovery if the injury happen on private property in an excavation or well made and used without malice or intent to harm, not substantially adjoining a highway, the one injured being on the premises without legal right: Gramlich v. Wurst, 5 Nor. 75; Knight v. Abert, 6 Barr 472; Phil. and Read. R. Co. v. Hummell, 8 Wr. 378; Gillis v. Penna. R. R. Co., 9 P. F. S. 129; Cauley v. Railroad, 9 W. N. C. 505; Cox v. Farmers' Market, 9 Am. L. Reg. N. S. 104. Morgan v. Hallowell, 57 Me. 375; Howland v. Vincent, 10 Met. 371; Pierce v. Whitcomb, 48 Vt. 127; Maenner v. Carroll, 46 Md. 193; Kohn v. Lovett, 44 Ga. 251; Hargreaves v. Deacon, 25 Mich. 1; Durham v. Musselman, 2 Blackford 97; R. R. Co. v. Bingham, 29 Ohio 364; Vanderbeck v. Hendry, 34 N. J. 467; McLaury v. City, 54 Iowa 717; Louisville & Portland Can. Co. v. Murphy, 9 Bush (Kentucky) 522; Straub v. Sorderer, 53 Mo. 38; City of Norwich v. Breed, 30 Conn. 535; Birge v. Gardiner, 19 Conn. 507; Beck v. Carter, 6 Hun 604; Keffe v. Milwaukee &c. R. R. Co., 21 Minn. 207; Stout v. Sioux City &c. R. R. Co., 2 Dillon 294; Hardcastle v. Railway Co., 4 Hurlst. & N. 67.

Thad. L. Vanderslice, for defendant in error.—This case is governed by Hydraulic Works v. Orr, 2 Norris 332. The defendants owed to the public the duty of filling up the abandoned well, or at least putting a sufficient guard round it; Kay v. Pa. R. R. Co., 15 P. F. S. 272; Birge v. Gardiner, 19 Conn. 507; Gramlich v. Wurst, 5 Norris 80; Stout v. R. R. Co., 2 Dillon 294; Keffe v. R. R. Co., 21 Minn. 207. Even if the child had been a trespasser the verdict could not have been different: Lynch v. Nurdin, 1 Ad. & El. N. S. 29; Kay v. Pa. R. R. Co., 15 P. F. S. 272.

Mr. Justice PAXSON delivered the opinion of the court, April 24th 1882.

The defendants below were the owners of a field near Long Lane, in the southern part of the city of Philadelphia. This field had formerly been used as a brick-yard, but the brick-clay having been exhausted, it had long since ceased to be used for such purpose and was lying out in commons. The surface, as is usual in abandoned brick-yards, was uneven, and in one portion of it there was a well of water about six feet in diameter and twelve feet deep. This well was constructed originally for purposes of drainage as well as to supply water for brick making. The field was not inclosed nor was there any guard around the well. The sides of the latter were sloping at the top; there were no bushes about it to conceal it from the eye, and its situation was such that no one would be likely to walk into it, unless in the darkness of the night. It was over one hundred feet from the public highway and about three hundred yards from the nearest house. There was evidence of a path or paths across the field but not directly to the well, and that it was used to some extent as a place of resort by children and adults. About four o'clock on the afternoon of Friday July 9th 1880, the plaintiff's son, a boy of seven years and ten months of age was found drowned in this well. According to the testimony his death must have occurred between one and four o'clock P. M. There was nothing to throw any light upon the circumstances connected with his sad fate, beyond what I have thus briefly stated.

The father of the boy brought this action in the court below, to recover damages or compensation for his death, the ground of the action being that the owners of the field were guilty of negligence in permitting the well to remain without a fence or guard of some kind to protect it. The jury rendered a verdict in favor of the plaintiff, upon which the court below entered a judgment against the defendants, who have brought the record into this court by a writ of error for review.

Upon the trial in the court below the learned judge instructed the jury as follows (see 1st and 2d assignments): "I say to you that a child cannot be treated as a trespasser or wrongdoer, and even trespassers may have rights when injuries are negligently inflicted upon them. The true principle which must be applied to a case of this kind is this, the owner of premises in the neighborhood of a populous city, and opening on a public highway, must so use them as to protect those who stray upon them and are accidentally injured."

This ruling was based upon Hydraulic Works Company v. Orr, 2 Norris 332. The language used was not that of this court, yet it is only fair to the learned and able president of the court below to say that it is substantially the ruling of the learned judge who tried the case in 2 Norris, and which was affirmed here. That case, however, was decided upon its own peculiar circumstances. The Hydraulic Works Company maintained upon its premises what this court designated as a dangerous and deadly trap, weighing over eight hundred pounds, and liable to fall at any moment, and "crush children beneath it like mice in a dead fall." It was in the heart of the city, close to a public highway and the access to it frequently left open, and it was moreover so constructed as not to give any indication of its danger. It was to such a structure, so situated, that the learned judge who tried that cause below applied the language referred to. It is also to be noticed that the opinion in Hydraulic Works Company v. Orr makes no reference to the assignments of error and contains no authorities in support of it. What this court meant to decide in that case was that a person who maintains such a dangerous trap close to a public highway in the heart of a large city might be liable to a person injured thereby, although such person were a child of six years of age trespassing upon the premises, and the familiar principle was invoked that "one may not justifiably, or even excusably, place a dangerous pit-fall, and wolf-trap or a spring-gun, purposely to catch even wilful trespassers poaching upon his grounds." Hydraulic Works Company v. Orr is authority only for its own facts. It was not intended to assert the doctrine that "a child cannot be treated as a trespasser or wrongdoer," and so far as it appears to sanction such a principle it must be considered as overruled. To apply such a doctrine to a boy lacking but two months of eight years of age would overturn the law as it has existed in England and in this country for two hundred years. It needs but to turn to as familiar an authority as Blackstone to see that a child of this age is liable for his torts and may be...