Millum v. Lehigh & Wilkesbarre Coal Co.
| Decision Date | 22 June 1909 |
| Docket Number | 227 |
| Citation | 225 Pa. 214,73 A. 1106 |
| Parties | Millum, Appellant, v. Lehigh & Wilkes-Barre Coal Company |
| Court | Pennsylvania Supreme Court |
Argued April 12, 1909
Appeal, No. 227, Jan. T., 1908, by plaintiffs, from order of C.P. Luzerne Co., Oct. T., 1905, No. 491, refusing to take off nonsuit in case of Francis Millum by his next friend and father, Joseph Millum, and the said Joseph Millum, each in his own right, v. The Lehigh & Wilkes-Barre Coal Company. Reversed.
Trespass to recover damages for personal injuries. Before FULLER, J.
The circumstances of the accident are stated in the opinion of the Supreme Court.
Error assigned was refusal to take off nonsuit.
The judgment is reversed, with a procedendo.
James L. Lenahan, for appellants. -- My contention is, that the child was not a trespasser within the meaning of the case of Thompson v. B. & O.R.R. Co., 218 Pa. 444. It falls rather within the case of Henderson v. Refining Company, 219 Pa. 384; Rachmel v. Clark, 205 Pa. 314.
Arthur Hillman, with him A. H. McClintock, for appellee. -- The nonsuit was proper: Rodgers v. Lees, 140 Pa. 475; Oil City, etc., Bridge Co. v. Jackson, 114 Pa. 321; Ritz v. City of Wheeling, 45 W.Va. 262.
Before MITCHELL, C.J., FELL, BROWN, POTTER and ELKIN, JJ.
The dividing line between the principle upon which Thompson v. B. & O.R.R. Co., 218 Pa. 444, was based, and that upon which Henderson v. Refining Co., 219 Pa. 384 stands, may be a narrow one, but the distinction in principle between them may be readily traced. In the former case, the child who was injured, was considered as an intruder and a trespasser upon the property of the defendant company. In addition to this he was injured through the action of his playmates, rather than by reason of any machinery which the defendant company set in motion. Under the circumstances of that case, it was held that the property owner was not liable for the injury to an intruder, caused not merely by the condition of the premises as they were, but chiefly by the carelessness of other children, who were also intruders and intermeddlers. Upon the other hand, in Henderson v. Refining Company, 219 Pa. 384, it was considered that the child who was hurt by coming in contact with dangerous machinery, left unguarded, was lawfully upon the premises: that the defendant company in that case, which owned both the lot where the dangerous machine was erected, and the dwelling houses on each side of it, had, by placing a gate in the fence upon one side, and a door in the house upon the other, each opening upon the lot in question, and in addition, by permitting the lot to be used for passage between the two houses, and as a playground for the children living in them, thereby extended to tenants in the houses, to their families and guests, an implied permission to enter upon, or cross the vacant lot.
At the time of the trial of the present case, the decision in Henderson v. Refining Co., 219 Pa. 384, had not been handed down, and therefore it could not have been brought to the attention of the court below. We consider that it is controlling, as applied to the facts of the case at bar. Here the facts, as stated by counsel, are substantially as follows. The accident by which a little boy only four and a half years old, was most severely injured, occurred in a field, some fifty or sixty acres in extent, owned by the defendant company, and lying on the outskirts of the city of Wilkes-Barre. The field was for the most part open and unfenced and was used, apparently, as a common, and at times as a picnic ground, and for the purposes of a playground. At a certain point in the field was a bore hole, and to the west about a quarter of a mile away, was an engine house of the defendant company....
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