Gramlich v. Wurst

Decision Date28 January 1878
Citation86 Pa. 74
PartiesGramlich <I>versus</I> Wurst <I>et al.</I>
CourtPennsylvania Supreme Court

Before AGNEW, C. J., SHARSWOOD, MERCUR, GORDON, PAXSON, WOODWARD and TRUNKEY, JJ.

Error to the Court of Common Pleas, No. 2, of Philadelphia county: Of July Term 1877, No. 86.

George W. Dedrick and David W. Sellers, for plaintiff in error.—The deceased was in defendant's close without right or permission. The instruction of the court was, in effect, that defendant should have erected a fence around his property to keep off those who had no right to be there. We contend that the owner of private property owes no duty to a trespasser.

Injury to trespassers is without remedy, because property is not owned or used with any contemplation of them: Railroad Co. v. Hummell, 8 Wright 375; Mulherrin v. Railroad, 31 P. F. Smith 375. In Allen v. Willard, 7 P. F. Smith 374, the one injured was traversing the highway, adjoining which was the excavation.

Walter J. Budd and John B. Devine, for defendants in error, provided no paper book, but in their argument relied upon Hydraulic Works v. Orr, 2 Norris 332; Railroad v. Hummell, 8 Wright 375.

Mr. Justice WOODWARD delivered the opinion of the court, January 28th 1878.

John Adam Wurst was killed by falling into a vault which Frederick Gramlich, the defendant below, was employed in excavating on a lot belonging to Adam Miller, on the east side of Thirty-first street, above Jefferson. The work was done under a contract between Gramlich and Miller, and for the purposes of the contract Gramlich had exclusive possession of the lot. Another person had fallen into the vault, and in approaching to aid him in response to his cries for help, it is probable that Wurst met with the accident that caused his death. In falling his head struck the shaft of a cart that was in use in doing the work, and which had been left over night in the excavation.

It was after dark, on the evening of the 13th of February 1874, that the accident happened. On the morning of that day the roof of an ice-house on a lot of Henry Miller, intervening between Adam Miller's land and Jefferson street, had broken down, and Wurst, who was a carpenter, had been at work at that building during the whole of the afternoon. Michael Gossey, one of the witnesses for the plaintiffs, said he saw him about half-past three o'clock on the top of the brewery getting wood down, and Henry Miller said: "Wurst was there before I was, clearing off the roof. It was a little after 12 o'clock when I arrived there. As long as I stood there he was working there; he was there until after 7 o'clock. He was hauling away timber; it was hauled to the north side, between my brewery and the vault Mr. Gramlich was digging." There was an open space between Henry Miller's building and Adam Miller's line, and from the account which the plaintiffs gave of Wurst's employment during the day, the fact that the excavation was being made must have been known to him, and the situation of the vault when the work ceased that evening must have been within his view. When he fell he was passing from the land of Henry Miller near the rear of Adam Miller's lot, and perhaps eighty feet eastwardly from the Thirty-first street front.

Under these facts — and all of them that are material are gathered from the testimony on behalf of the plaintiffs — what duty did Gramlich owe to Wurst? The contract for digging the vault was a perfectly lawful one, and it has not been alleged that the work was done otherwise than in the accustomed way. It was all done within Adam Miller's lines. No adjacent land was encroached upon, and no danger to passengers on any highway was created. Indeed, there was no highway to be involved in danger. Thirty-first street, north of Jefferson, had only been opened along the property of Henry Miller, and the surface of Adam Miller's lot at the line of the street was from ten to fifteen feet above its established grade. There was some conflicting testimony as to paths alleged to have traversed the lot, but if there were such paths, they extended eastwardly or northeastwardly in the direction of a lampblack factory, and it was not contested that Wurst fell into the vault as he approached it from the southern side. The existence or non-existence of paths across the property was immaterial.

In the ordinary case, a jury must pass upon evidence given in support of a charge of negligence. They must do this always when the measure of duty is ordinary and reasonable care, and the standard of the degree of care shifts with the change of circumstances. And they must do it also where essential facts are controverted. But where there is no conflict of testimony, and either the standard of individual duty has been judicially determined, or the rights of owners of property have been judicially defined, the decision of a question of negligence affecting individual action in the one case, or the exercise of dominion over property in the other, becomes the duty of a court. Negligence is to be found upon evidence, and is not to be presumed from the bare fact of the occurrence of an accident on a defendant's land. Gramlich was in the lawful occupancy of the lot on which Wurst was killed, and was engaged in an employment that was entirely legitimate. In the absence of evidence to show the existence of exceptional hazards, he was not required to provide exceptional safeguards. An owner of land may improve it in his own time and in his own way, so that he violates no duty that he owes to any adjacent...

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    ... ... C.; Gray v. Railroad [Mass.], 38 ... N.E. 186; Schauf v. Paducah [Ky.], 50 S.W. 42; ... Klix v. Newman, 68 Wis. 273; Gramlick v ... Wurst, 86 Pa. 74; Omaha v. Bowman [Neb.], 72 ... N.W. 316-318; Dehantz v. St. Paul [Ill.], 76 N.W ... 48-50; Nutting v. St. Paul [Minn.], 76 N.W ... ...
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