Schilling v. Abernethy

• Decision Date: 12 April 1886
• Docket Number: 144
• Citation: 112 Pa. 437,3 A. 792
• Parties: Schilling v. Abernethy
• Court: Pennsylvania Supreme Court

3 A. 792

112 Pa. 437

Schilling v. Abernethy

No. 144

Supreme Court of Pennsylvania

April 12, 1886

Argued March 24, 1886

ERROR to the Court of Common Pleas, No. 1, of Philadelphia county Of July Term, 1885, No. 144.

Case by William Abernethy by his father and next friend Robert Abernethy against Christiana E. Schilling, to recover damages for injuries sustained by him by the falling of a privy wall on the premises belonging to the defendant, which, he alleges, she negligently allowed to remain out of repair. Plea, not guilty.

The following are the facts as they appeared on the trial before BIDDLE, J.:

The defendant was the owner of a lot of ground situated on Emerald street, in the city of Philadelphia, containing in front, on said Emerald street, thirty-six feet, and extending in depth one hundred feet on the north line, and eighty-three feet on the south line. On the Emerald street front are erected two brick dwelling houses, in one of which the plaintiff, who is a minor, resides with his father. Between the two houses is an alley three feet wide, extending back from Emerald street about fifty-three feet to a factory erected on the rear portion of defendant's lot, said factory occupying the whole width of said lot, immediately behind the yards of the said two dwelling houses. The houses abut directly upon the alley, but from the rear wall of each house to the yard of the factory at the back end of the alley, there is a fence along each side of said alley shutting off the yards of the houses from it. There is a door from each house into the alley, and also a gate immediately in the rear of each house, opening into the same. Across the front of the alley at Emerald street is a gate, and when plaintiff's father rented the house in which he now resides there was another gate across the alley, a few feet behind the gates opening into the house yards. Some months before the accident this inner gate had been removed by the tenant of the factory. This alley was originally the only entrance to the factory; but before the accident another entrance had been opened from Front street, which is in the rear of the factory. In the rear corner, next to the alley in the yard of each house, is a brick privy. One side of each abuts upon the alley, and the rear of each is upon the line between the yards of the houses and the yard of the factory.

On the 26th of August, 1884, the alley wall of the privy belonging to the premises on the north side of the alley (not the premises in which plaintiff resides), fell out into the alley, and injured the plaintiff, about eleven years old, who was passing at the time. The premises on which the privy that fell stood, had been leased by the defendant to one Lavery about nine months before the accident, and were still in his possession under the lease when the wall fell.

The narr. alleged that the wall was out of repair before and at the time it was leased to Lavery.

There was no evidence that the defendant had ever dedicated this alley to the public as a highway, or had ever intended it to be so used; nor was there any evidence that it had ever been used by the public as a highway, or by the public at all. It had never been used by anybody, except the employes and customers of the factory, and after the other entrance to the factory from Front street was opened, the alley was only used for taking out merchandise, and for the entrance from Emerald street of persons having business with the factory.

It was an undisputed fact in the case that when the wall fell, the plaintiff, with his brother and two other companions, was walking through the rear of the alley between the two privies for the purpose of entering the factory yard to pick up some pieces of scrap leather with which he intended to make a "slap jack." It was also undisputed that the plaintiff did not go there to buy leather, and had no intention of paying for what he took, and that he had no business whatever with the proprietor of the factory. The plaintiff had no connection with the factory, and did not enter the yard by the invitation or permission of the proprietor or of the defendant.

The defendant presented, inter alia, the following points:

1. Under all the evidence in this case the verdict must be for the defendant. Refused. (First assignment of error.)

9. If the jury find from the evidence that the portion of the alley where the accident occurred was exclusively for the use of the factory in the rear thereof, and for the accommodation only of persons lawfully resorting to said factory, and the jury further find from the evidence that at the time of the accident the plaintiff was passing through that portion of the alley for the purpose of entering the yard of said factory, without the permission or invitation of the tenant, to take a piece of leather for his own use, without paying or intending to pay therefor, then the defendant owed no duty to the plaintiff, and he cannot recover in this case. Refused. (Second assignment of error.)

The court charged the jury as follows:

Plaintiff claims damages for the negligence of the defendant. Defendant owns the whole property, alley way included. The alley originally was the only way out of and to the factory. If defendant owned a property adjoining a street, and the wall would fall upon you, she would be the person responsible unless there is something to take the case out of the general rule. The defence divides itself into three parts. The first point of the defendant is that the defendant is not responsible because she was not living in the house at the time of the accident. The law is that if this privy was out of condition when she rented the premises to the Laverys, the defendant would be responsible, but not if the privy was then in perfectly good condition. [The second point is that this child was a trespasser. In that point I do not agree. I think the boys were no more trespassers where they were than any other person who was lawfully there, and therefore on this point the plaintiff would be entitled to recover.] (Third assignment of error.) The third point is that the plaintiff had been guilty of contributory negligence. It is well settled that if both parties have contributed to the injury there is no redress. It has been decided in reference to sidewalks out of repair that if a man passes, knowing that it is dangerous, and could go around some other way, he cannot recover. But it has been decided...