Rush v. Plains Township
| Decision Date | 29 May 1952 |
| Docket Number | 7718 |
| Parties | RUSH et al. v. PLAINS TP. Appeal of RUSH et al. |
| Court | Pennsylvania Supreme Court |
Argued April 16, 1952
Appeals, Nos. 110 and 111, Jan. T., 1952, from judgment of Court of Common Pleas of Luzerne County, Oct T., 1949, No 1073, in case of Francis Rush and Sterling Rush, a minor, by Francis Rush, his Guardian, v. Township of Plains. Judgment affirmed.
Trespass for personal injuries. Before VALENTINE, P.J.
Compulsory nonsuit entered; plaintiffs' motion to take off nonsuit refused and judgment entered for defendant. Plaintiffs appealed.
Judgment affirmed.
Elizabeth P. Mensch , for appellants.
Maurice H. Kirshner , with him Herman E. Cardoni , for appellee.
Before DREW, C.J., STEARNE, JONES, BELL, CHIDSEY and MUSMANNO, JJ.
Was a nonsuit -- viewing the evidence in the light most favorable to the plaintiffs: Davies v. D.L. & W. R.R. Co., 370 Pa. 180, 87 A.2d 183, properly entered in this case?
Sterling Rush, aged 7, by Francis Rush, his guardian, and Francis Rush in his own right, brought an action in trespass against the Township of Plains to recover damages for burns and other injuries sustained by Sterling on a refuse and garbage dump leased and maintained by the Township. The dump covered about a quarter of a city block and had originally been a strip mining hole. The township as well as other people of the community dumped refuse and garbage into this excavation or dump, commencing sometime during 1946.
The dump was approximately one mile distant from plaintiffs' home and from any other habitation.
On July 28, 1949, Sterling Rush left his home with his brother at approximately 3 o'clock p.m. and went to the dump for the the purpose of getting some funny books. There was a fire on the right hand side of the dump about thirty feet away and smoke was issuing from the ground ten feet away. Sterling walked on the left hand side of the dump to find the funny books when the surface suddenly gave way underneath him and he sank through the refuse almost up to his neck. There were hot coals on the bottom and he was burned about his legs and hands. The surface appeared to him and to other witnesses to be solid and no fire or smoke or hot coals were visible at the point of the accident until after the surface gave way. A watchman was maintained at this dump. There was no testimony that the township had started the fire, or had actual knowledge that any fire was smouldering underneath the surface; and the dangerous condition was undoubtedly a latent one. There was ample evidence that children went to the dump several times a week during vacation periods and on holidays for the purpose of picking up funny books, toys, junk, rags and similar objects and that occasionally boys shot rats there. The evidence also disclosed that since 1946, a fire had often been seen burning in some part of the dump, although not where the injury occurred.
We agree with the court below that the evidence was entirely insufficient to establish this dump as a playground; and that a dumping ground for ashes and refuse does not constitute an attractive nuisance: Cf. Zellman v. Philadelphia, 17 D. & C. 493 (Judge HORACE STERN); Bruce v. Kansas City, 128 Kan. 13, 276 P. 284; Harlan v. Peaveley , 224 Ky. 338, 6 S.W.2d 270.
Plaintiff relies upon Allen v. Silverman, 355 Pa. 471, 50 A.2d 275, where this Court said (page 474): .
We agree with the contention of the plaintiffs that the township should under the testimony have known that children were likely to trespass upon this dump; but we disagree with their contention that the township should have realized that the place where the accident occurred involved an unreasonable risk of death or serious bodily harm to trespassing children. If plaintiff's injury had occurred at the place where the fire was or had been burning, a different question would have been presented; but since the injury occurred in a part of the dump where there was no fire and no evidence that prior to the accident there had been any fire, and since it was clearly and indisputably a latent condition of which the defendant did not have any actual knowledge, or constructive notice, plaintiff cannot recover.
The language of Chief Justice CARDOZO in Palsgraf v. Long Island R. Co., 248 N.Y. 339, 162 N.E. 99, is particularly applicable:
We believe the evidence produced is insufficient to establish negligence on the part of the defendant or to warrant submission of the case to the jury.
Judgment affirmed.
The place at which the minor plaintiff in this case was injured was known as the Plains Township Dump, but for the children in the area it was a Treasure Land. They flocked here to gather up not only trash and trivia; they found here, according to standards of value of the juvenile world, diversified objects of entertainment and articles of intrinsic pecuniary worth. The citizenry of Plains Township, in an apparent burst of enthusiastic housecleaning, rid themselves of a vast variety of things which ran the range from toys and alarm clocks to old furniture, all of which in due time were transported by the township trucks to the valley of discard on Jumper Road. Witnesses testified that on this abandoned treasure heap they could and did find toys, comic books, picture books, magazines, sinks, playing balls, hats, trunks, rags for carpets, pails, chrome, linoleum, boxes, glass objects, automobile parts, screens, paint, and iron.
The treasure hunt was not limited to small children. Adults drove to the dump in trucks to gather up junk. Steve Kosko, 14 years of age, made periodical trips to the spot on a bicycle, to which he had strapped a box in which he could carry as much as 100 pounds of rags, iron and chrome. His brother Walter Kosko testified to having even found a discarded sewing machine on the dump which he was able to sell. Some times comic books were thrown away here in such quantities that they could be gathered up in bushel baskets and resold at 3 cents each.
If there ever was a site or activity in the law books which could be characterized as an Attractive Nuisance, it was the Jumper Road Dump in Plains Township, Luzerne County, Pennsylvania. Not only did it bestow prizes on those who visited it, but it offered adventure as well. Young people came to the dump to shoot rats. In he summer time it became a mecca for huckleberry pickers, and hunters also bagged rabbits in the adjacent woodland. As an added attraction the dump was a rendezvous for hoboes, those ragged and unwashed cavaliers of the road who are always a source of fascination to children.
The record in this offers a plethora of evidence as to the attractiveness and the nuisance of the Jumper Road Dump.
It is simply inconceivable that the township authorities could not know what was going on at their dump, which covered an area the size of a quarter of a city block. One witness testified that he saw a township watchman on duty at this point during the week days, and, of course, the knowledge of the township employe would be the knowledge of the Township. In 1946 a portion of the dump caught fire and its glow could be seen at night a mile away. The fire, which seemed to be confined to the right section of the dump, was never extinguished up to and including the day of the accident which is the subject of this lawsuit. One witness testified that he saw another boy, prior to this accident, sustain burns to his fingers when he came into contact with hot tar paper while seeking juvenile treasure.
On July 28, 1949, the minor plaintiff, Sterling Rush, 7 years of age and his brother Francis, 10 years of age, started out from their home at about 5 o'clock in the afternoon, and walked through abandoned mine strippings and woods to the dump a mile away. While Sterling was picking his way over the left section of the dump, looking for comic books and traversing what seemed to be solid ground, the ground gave way beneath his feet and he sank up to his neck into a smouldering fire below the surface, sustaining severe burns to both legs and arms, burns which required hospitalization for 83 days and...
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