Weimer v. Westmoreland Water Co.
| Decision Date | 15 July 1937 |
| Docket Number | 252-1937 |
| Citation | 127 Pa.Super. 201,193 A. 665 |
| Parties | Weimer et ux. v. Westmoreland Water Company, Appellant |
| Court | Pennsylvania Superior Court |
Argued April 23, 1937
Appeal from judgment of C. P. Westmoreland Co., May T., 1935, No 479, in case of Joseph Weimer et ux v. Westmoreland Water Company.
Trespass for wrongful death. Before James, P. J., specially presiding.
The facts are stated in the opinion of the Superior Court.
Verdict and judgment for plaintiff in sum of $ 2,418.65. Defendant appealed.
Error assigned, among others, was refusal of judgment n. o. v.
Judgment affirmed.
Robert W. Smith, of Smith, Best & Horn, for appellant.
John E Evans, Jr., of Margiotti, Pugliese, Evans & Buckley, with him Joseph M. Loughran, for appellees.
Before Keller, P. J., Cunningham, Baldrige, Stadtfeld, Parker, James and Rhodes, JJ.
The defendant appeals in this action of trespass from a judgment obtained by the plaintiffs for the death of their minor son, 13 years of age, resulting from the falling of a freight hoist or elevator in defendant's filtration plant.
This plant consists of a rather long, low, irregularshaped building made up of various rooms, located on South Broad Street, South Greensburg, in the proximity of a residential district. Facing the lawn, 8 to 10 feet wide, lying between the plant and the street, are four main entrances; three have double doors and the fourth a single door, which were kept open in summer. To each entrance was attached a chain with a small sign thereon, stating "No Admittance," but most of the time the chains were down. In the plant were moving machinery, electrical equipment, and water being chemically treated. At the northern end is a "Mixing Room", where the water enters the plant and is agitated over an iron grill of a fountainlike construction. Immediately next thereto is a room for storage of chemicals. In the mixing room there was a hoist with a floor 3 by 5 feet, but without an enclosed cage, operated by means of a windlass and a chain attached at the top, to raise to the second floor alum and lime used in the filtration process. Two "V"-shaped iron rails on one side of the wall or partition between the mixing and storage rooms acted as a guide, but there was no safety device equipment to prevent the hoist from falling in the event the chain on which it was suspended broke.
The testimony offered upon the part of the plaintiffs, which must be interpreted most advantageously to them, shows that from 1930 to 1934 the children in the neighborhood frequently went into defendant's building. One witness testified that the boys were in the plant daily. There was no proof that any objection was raised to their presence, or warning given, other than the notice of no admission on the chains. This was ineffective if, by general custom, it was disregarded: Restatement, Torts, sec. 334, p. 906.
On November 3, 1934, about 10 o'clock a. m., Edward Weimer, son of the plaintiffs, with a boy companion, was passing the plant when a laborer employed by defendant, sitting in the open doorway, offered Edward a cigarette if he and his companion would come inside and turn the crank which raised the hoist. The boys accepted this proposition and after working a while left the plant. Edward later returned with another boy, and they assisted an employee in raising the hoist, on which had been placed four heavy sacks of chemicals. When this employee went to the second floor to remove the sacks, Edward left the windlass, went under the hoist to see if it had been raised sufficiently, and at that moment the chain broke, causing the hoist to fall, fatally crushing him.
Plaintiffs in their statement of claim alleged that the hoist was an appliance negligently constructed and maintained and that it attracted children, that the deceased boy was in the plant at the request and with the consent of defendant, acting through its servants and agents.
The appellant denied these averments and maintained that the facts proven failed to bring this case under the so-called attractive nuisance or playground rule, especially as this accident occurred inside defendant's building. It argued further that the evidence did not establish any permissive use and therefore the deceased was a trespasser; that as no proof was adduced of wilful or wanton negligence, it is not liable.
The so-called playground or attractive nuisance doctrine has been firmly established in our jurisprudence. The latest case of our Supreme Court recognizing this rule is Hogan et al. v. Etna Concrete Block Co., 325 Pa. 49, 188 A. 763, which cites a number of previous decisions. It is there pointed out that if children are wont to go on premises to play or for other purposes, and the owner thereof maintains attractive appliances or artificial conditions which create a danger, and does not express his disapproval of their presence, he is legally bound to use ordinary care. We have found no Pennsylvania authority expressly holding the playground rule applicable to inside of buildings.
It is unnecessary to discuss further this doctrine as in our view the evidence did not establish that the hoist was an appliance that induced the deceased boy to enter the defendant's plant or in anyway attracted him. But there was proof of a permissible use by defendant which imposed upon it the duty to use reasonable care for the safety of children frequently visiting its plant.
We concede in the beginning of our discussion of this phase of the case that the laborers working around defendant's plant had no authority to invite the deceased to assist them in their work: Flower v. Penna. Railroad Co., 69 Pa. 210; Arzt v. Lit et al., 198 Pa. 519, 48 A. 297; Stefan v. New Process Laundry Co., Inc., 323 Pa. 373, 185 A. 734. The right of recovery is not based thereon, but on the duty of the defendant in operating and maintaining a dangerous hoist, accessible to children who were so frequently present in the plant as to imply that the defendant tacitly assented thereto, to use reasonable care to guard them from injury.
It was said in Kay v. Penna. Railroad Co., 65 Pa. 269, 273: "Duties grow out of circumstances, the authorities tell us, and that which in one case would be an ordinary and proper use of one's rights may, by a change of circumstances, become negligence and a want of due care." See also, Schilling v. Abernethy, 112 Pa. 437, 3 A. 792. In Hydraulic Works Co. v. Orr et ux., 83 Pa. 332, the defendant had a factory enclosed by a fence which included a gate leading to a frequented street where children played. The passage was often open and children entered the enclosure. The plaintiffs' son strayed therein and while at play, the platform fell and broke the child's back. The court, in holding the defendant liable, said (p. 335): Mr. Justice Drew, in the course of the opinion in Hogan et al. v. Etna Concrete Block Co., supra, said (p. 51): "Toleration of trespass for sufficient time gives rise to privilege which adds to the duties of the occupier in the maintenance and use of his premises." We said in Martinez v. Pinkasiewicz, 118 Pa.Super. 200, 203, 180 A. 153, speaking through Judge Parker: "Even granting for the sake of argument, that the facts here proven did not show the use of the ground by the children as a common playground, as that term is defined in the case of Fitzpatrick v. Penfield, supra [267 Pa. 564, 109 A. 653], the facts do show a permissive use of the premises by the owner."
Recovery was allowed where a boy with the alleged permission or knowledge of the owner, went into a barn and fell into a cistern in the floor (Cosgrove v. Hay, 54 Pa.Super. 175), and where a boy, by permission, went into a stable and was kicked by a mule (Kierkowsky v. Connell, 253 Pa. 566, 98 A. 766).
While there was no...
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