Glass v. Freeman

• Decision Date: 24 April 1968
• Citation: 240 A.2d 825,430 Pa. 21
• Parties: Dallas E. GLASS v. Clarence FREEMAN and Marie Freeman, Appellants, R. A. Reinhold and Donald Bauman. Appeal of Donald BAUMAN.
• Court: Pennsylvania Supreme Court

240 A.2d 825

430 Pa. 21

Dallas E. GLASS v. Clarence FREEMAN and Marie Freeman, Appellants,

R. A. Reinhold and Donald Bauman. Appeal of Donald BAUMAN.

Supreme Court of Pennsylvania.

April 24, 1968.

CONCURRING OPINION

ROBERTS Justice.

While I find myself in accord with the majority's resolution of the substantive aspects of this litigation, I wish to reiterate my view that a general exception should not preserve on appeal alleged errors in a charge where, by timely Special exception, counsel could have requested the court to correct this error below. See Lambert & Intreri, Inc. v. Holiday Motor Hotel, Inc., 428 Pa. 299, 301--302, 236 A.2d 804 805 (1968) (concurring opinion); Lobalzo v. Varoli, 422 Pa. 5, 7--10, 220 A.2d 634, 636--637 (1966) (concurring opinion). It is only where the error below could not be corrected that I believe a general exception is sufficient it is thus irrelevant to me whether the error below was 'fundamental' for, the more fundamental the error the more incumbent it is upon counsel to call this matter to the attention of the court below.

DISSENTING OPINION

BELL, Chief Justice.

I would reverse the judgment of the lower Court and enter judgment n.o.v. for Bauman and certainly for Clarence and Marie Freeman. The Freemans are landowners, and a possessor of land is not and never has been until the Majority have by implication made him today, an insurer or guarantor.

Where I differ from the majority Opinion about Bauman is that it was not reasonably foreseeable that a 7-year old child would get into And drive a heavy tractor up a hilly slope while his father went to the men's lavatory. If a judgment n.o.v were not entered, I would grant a new trial in the interest of Justice. If defendant, who was Absent, should have foreseen that a 7-year old boy would get in and drive a heavy tractor, why should not plaintiff, who was Present, have foreseen and guarded himself against it?

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Notes:

^[1] The correctness of this ruling is not before us.

^[2] Plaintiff submits that Bauman's omission, failing to shout a warning when he saw the tractor rolling toward the plaintiff, also was negligent. The question of whether or not Bauman had an affirmative duty to warn plaintiff is not without difficulty. See generally, 2 Harper & James, The Law of Torts § 18.6 (1956); Restatement (second), Torts § 321 (1965). It is unnecessary to decide this question, however, since Bauman clearly...